2023INSC879 Page 1 of 42

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 301 OF 2015

BALVIR SINGH …APPELLANT(S)

VERSUS

STATE OF UTTARAKHAND …RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 2430 OF 2014

J U D G M E N T

J. B. PARDIWALA, J.:

1. Since both the captioned appeals arise from a common judgment and

order passed by the High Court dismissing two criminal appeals of two accused

persons tried in one sessions case those were heard analogously and are being

disposed of by this common judgment and order.

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2. These appeals are at the instance of two convicts and are directed against

a common judgment and order dated 24.03.2014 passed by the High Court of

Uttarakhand at Nainital in the Criminal Appeal No. 273 of 2013 and Criminal

Appeal No. 274 of 2013 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.

CASE OF THE PROSECUTION

3. The deceased, namely, Sudha was married to Balvir Singh. The marriage

of the deceased with Balvir Singh was solemnised on 12.12.1997. In the

wedlock a son was born. On 02.06.2007, father of the deceased, namely,

Virendra Singh (PW1) preferred an application in the court of the Judicial

Magistrate First Class, Kotdwar, Garhwal under Section 156(3) Code of

Criminal Procedure, 1973 (for short, ‘the CrPC’), seeking a direction to the

Police to register an FIR in connection with the death of his daughter in

suspicious circumstances. The Judicial Magistrate First Class, Kotdwar,

Garhwal, passed the following order dated 04.06.2006:

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“Order

04.06.2006

Applicant Virendra Singh had filed application under

section 156(3) Cr.P.C. for passing order for registration of First

Information Report against accused persons, wherein, applicant

has mentioned as under that marriage of daughter of applicant

Sudha had been solemnized on 12.12.1997 with Balvir Singh son

of late Mahavir Singh, resident of village Ratanpur,

Kumbhuchau, Halqa-Saneh, Kotdwar, Garhwal at Uttari

Jhandichaur, Police Station Kotdwar and out of their wedlock,

one son was born to them. After sometime from solemnization of

marriage Balvir Singh and Smt. Maheshwari Devi mother of

Balvir Singh connived together and started harassing my

daughter in different ways and started raising demand of Rs. One

lakh cash in dowry. Applicant’s daughter informed applicant

about the same through letters. Balvir Singh has been working in

a Private Nursing Home in Delhi and he is very well acquainted

with medicines. According to the Applicant, Balvir Singh before

committing murder of his daughter managed to arrange fake

prescription slips which he has kept with him. Despite reluctance

of his daughter, on 09.05.07 Balvir left his son at Kotdwar and

forcibly took my daughter Sudha who was in healthy condition to

Mangolpuri, Delhi. Before leaving, Applicant’s daughter

expressed her wish to her uncle over telephone about her

reluctance for going to Delhi. On 13.05.07 at about 1.30 o’clock

in the night Applicant’s younger brother Harender Singh received

information from Delhi over phone that his daughter Sudha has

all of a sudden left for her heavenly abode in Mangolpuri. Balvir

Singh did not give this information to any of the other family

member rather some neighbour gave this information to the

younger brother of Harender Singh; Shivcharan, who resides in

Delhi. Shivcharan visited Mangolpuri in the night itself, where

he came to know that she was in good health on that night and

Balvir Singh after the death of the deceased, took her dead body

to his home at Ratanpur, Kotdwar by private ambulance without

giving information to anyone. When the applicant came to know

about this fact, he informed the police of Police Station Kotdwar.

There were reddish injury marks apparent on the throat of the

applicant’s daughter, due to which the Police initiated inquest

proceedings and arranged postmortem of the dead body.

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On calling for the report from Police Station on the

application filed by applicant, Police Station has submitted that

no First Information Report is lying registered at Police Station

on the basis of facts mentioned in the application moved by

applicant under section 156(3) Cr.P.C Applicant has filed

photocopies of letters written by his daughter and photocopies of

applications lodged by him with Inspector Incharge of Police

Station Kotdwar and Deputy District Magistrate, Kotdwar in

court in support of his application filed under section 156(3)

Cr.P.C.

On the basis of documents filed by applicant in support of

his application, prima facie offence seems to be made out.

Therefore, in such circumstances, registration of First

Information Report seems to be essential. Therefore, S.H.O.,

Police Station Kotdwar is ordered that hiving registered First

Information Report in the light of application filed by applicant

under section 156(3) Cr.P.C and to conduct investigation.

Sd/-

Judicial Magistrate”

4. Pursuant to the aforesaid order passed by the learned Judicial Magistrate,

the First Information Report came to be registered at the Kotdwar Police Station

on 09.06.2007 for the offence punishable under Sections 302, 498A read with

Section 34 of the IPC and Sections 3 and 4 respectively of the Dowry

Prohibition Act, 1961 (for short, ‘the Act 1961’). The First Information Report

reads thus:

“Sir, Applicant Virendra Singh, son of late Mohan Singh, resident

of Village Mawasa, Patti –Ajmer Pall, Tehsil Kotdwar Garhwal

respectfully submits as under:-

1. That the marriage of my daughter Sudha had been solemnized

on 12.12.1997 with Balvir Singh, son of late Mahavir Singh,

resident of village Ratanpur, Kumbhuchaur, Halqa-Saneh,

Kotdwar, Garhwal, from the house of my younger brother located

at Uttari Jhandichaur, Police Station Kotdwar and out of the

wedlock, one son was born to them.

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2. That sometime after marriage, Balvir Singh and Smt.

Maheshwari Devi who is the mother of Balvir Singh, in

connivance with him, started harassing my daughter in different

ways and raising demand of Rupees One lakh cash in dowry. Smt.

Maheshwari Devi has been getting pension and also owns landed

property. Balvir Singh is a greedy person and under the greed of

pension of his mother, he has been harassing my daughter and

subjecting her to beatings, not providing food to her, and that the

women of the village somehow provided her food by hiding

themselves from these people. My daughter wrote letters to us

complaining about this fact. When Balvir Singh and his mother

came to know about these letters, then they pressurized my

daughter for asking back the said letters and we accordingly

returned those letters, but letter dated 20.05.04 which has been

lodged by us at Police Station, remained with us. In this letter

also my daughter has put her grievances and harassment that she

faced.

3. That on getting knowledge of this incident me, my few relatives,

Panch, and Pradhan Ratanpur visited and tried to convince

Balvir Singh and his mother not to indulge in such acts so that in

future my daughter may stay there properly and I did not lodge

any report. However, Maheshwari Devi and Balvir Singh kept on

hatching conspiracy for eliminating my daughter Sudha. Once

they had made my daughter consumed poison also but my

daughter had not told this fact to anyone.

4. That Balvir Singh has been working in a Private Nursing Home

in Delhi and he is very well acquainted with medicines. Before

committing murder of my daughter, he managed to arrange fake

and forged prescription slips, which has been shown to police

also, and investigation about these slips & medicines is required.

Despite reluctance of my daughter on 09.05.07 Balvir left his son

at Kotdwar in healthy condition and took my daughter Sudha at

Mangolpuri, Delhi forcibly. Before leaving, my daughter

expressed her unwillingness to go to Delhi, to my younger

brother Harender over telephone.

5. 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. Balvir Singh did not give this

information to any of our family member rather some neighbour

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gave this information to the younger brother of Harender Singh;

Shivcharan, who resides in Delhi. Shivcharan visited Mangolpuri

in the night, where he came to know that my daughter was in good

health on that night and Balvir Singh after the death of my

daughter, took her dead body to his home at Ratanpur, Kotdwar

by private ambulance without giving information to anyone.

When we came to know about this fact, then we informed the

police of Police Station Kotdwar but we could not provide all

details at that time. As reddish injury marks were apparent on the

neck of my daughter, Police initiated inquest proceedings and

arranged postmortem of her dead body. Sir, I have reason to

believe that the said Maheshwari Devi and her son Balvir Singh

have killed my daughter having hatched a conspiracy and have

also induced her little child also in their favour.

6. 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.

Dated : 02.06.07. Applicant - Sd/- Virendra Singh son of late

Mohan Singh, resident of Village Mawasa, Patti –Ajmer Palla,

Tehsil –Kotdwar, District –Pouri Garhwal.

Note: I, HC 14 Kabool Singh Prajapati do hereby certify that

copy of formal report has been recorded word to word which is

clearly legible.

Sd/-

HC 14 Kabool Singh

Police Station Kotdwar

Dated : 09.06.07”

5. Upon registration of the FIR, the investigation was carried out. The dead

body of the deceased on being brought from Delhi to Kotdwar, was sent for

post mortem. The inquest panchnama was drawn in presence of the independent

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panch witnesses. The statements of various witnesses were recorded by the

investigating officer under Section 161 of the CrPC. The viscera collected

during the course of the post mortem was sent to the forensic science laboratory.

Both the appellants herein were arrested and remanded to judicial custody.

6. Upon conclusion of the investigation, chargesheet was filed for the

offences enumerated above. To the charge framed by the trial court vide order

dated 21.02.2009, the appellants pleaded not guilty and claimed to be tried.

7. The prosecution led the following oral evidence:

a. PW1 Virendra Singh (Father of the deceased)

b. PW2 Dr. Indra Singh Samant, Govt. Hospital (the Doctor who performed

the post mortem)

c. PW3 Harender Singh (Uncle of the deceased)

d. PW4 Balbir Singh (Another uncle of the deceased)

e. PW5 M.M.S. Bisht (Senior Sub Inspector)

f. PW6 Baldev Singh (Panch witness to the inquest proceedings)

h. PW7 Kabool Singh (Head Constable)

8. Prosecution also led documentary evidence as under:

a. Post mortem report Exh.Ka-4

b. Inquest report Exh. Ka-5

c. Two letters written by the deceased to her father i.e., PW1 Exh.Ka-1 and

Ka-2.

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9. The appellants herein examined Shivam Rawat the son of the deceased

as a defence witness (DW-1). The appellants also examined one Anoop

Singh cousin brother of the deceased as a defence witness (DW-2).

10. 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.”

11. The mother-in-law of the deceased stated in her further statement

recorded under Section 313 CrPC that she was innocent and had been falsely

implicated.

12. The trial court upon appreciation of the oral as well as documentary

evidence on the record held the husband guilty of the offence of murder

punishable under Section 302 of the IPC and also for causing harassment

punishable under Section 498A of the IPC. The trial court sentenced the

husband to undergo rigorous imprisonment with fine of Rs. 10,000/- The

mother-in-law, namely, Maheshwari Devi came to be acquitted by the trial court

of the offence of murder, however, she stood convicted by the trial court for the

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offence punishable under Section 498A of the IPC and was sentenced to

undergo 2½ years of imprisonment.

13. The trial court while holding the appellants guilty of the offence

enumerated above, recorded the following findings:

“21. Deceased died of poison. Although prosecution could not

bring clear evidence that victim was administered poison by

accused, but regarding harassment PW-1 and PW-2 have

produced evidence. This is established by Exhibit A1 and

Exhibit A2 too. Moreover, after her death poison was found in

viscera report. However, nothing has been said by the defence

about how it entered the body of the deceased. Accused

statement was registered under section 313 of Criminal

Procedure Code and he was clearly asked that poison was found

in deceased's visceral examination report, what you have to say

about it? Regarding this accused Balvir Singh said that "I do

not have knowledge how it was found, but deceased was heart

patient and was on medication". Regarding this, defence

examined DW-1 who is deceased's son and who said in his

examination-in-chief that "my mother was undergoing

treatment at Delhi, where she died". He further said "my

grandmother and father love me a lot and treated my mother

nicely". He is a child witness. This witness told that the death of

the deceased took place during treatment but, nothing is said

about where she was undergoing treatment, or how she died.

Defence argued that deceased was a heart patient and because

of which death occurred but this argument is negated by viscera

report. DW-2 produced by defence said in his examination-in-

chief that "accused was getting the deceased continuously

treated at Delhi. Deceased Sudha was distressed because of her

illness. Accused use to take care of Sudha. Balvir Singh and his

mother did not harass her, and that she may have done

something to herself because of her illness". This witness

produced by defence has based his evidence on new facts.

During cross-examination, examination of prosecution witness

by defence, no question regarding such matter was asked as to

whether the deceased was distressed either before her illness or

because of her illness. DW-1 who is deceased's son and on

whom defence stressed upon, has not stated anything regarding

the deceased being distressed due to her illness. DW-1 has only

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stated that death occurred during treatment, while DW-2 has

based his evidence on new facts which are not concurring with

the facts of defence because they have said that treatment was

given at Escorts Hospital. Regarding this defence has

questioned PW-1 that in year 2006 accused paid a bill of rupees

3,82,500/-at Escorts Hospital which was refuted by him.

Regarding this defence has produced documents. I have

examined those documents. Although defence have not proved

those documents but in file page number 48A/2 a document of

rupees 3,82,500/-is present which was given by Dr. Nitish

Chandra, but said document is not a bill of payment instead it

is an estimate required for complete checkup and operation,

because in the document it is written that –‘Advance payment

may please be made at the time of admission by case/demand

draft in favour of Escorts Heart Institute and Research Centre

Ltd. Payable at New Delhi’. By looking at the document it is

clear that accused and others did not pay any money. Apart from

this there is no document in the file for payment of rupees

3,82,500/-. regarding this there is no statement from defence.

22. Apart from this prosecution witness PW-4's cross-

examination was conducted. In his cross-examination by

defence the witness has said "it is true that in the inquest report

deceased's husband stated that my wife after delivery of son,

used to remain ill. Often, she had episodes of unconsciousness.

On the night of 13 May 2007 at 10:00 pm, she had an attack and

did not regain consciousness. I took her to Sanjay Gandhi

Memorial Hospital, where she was declared dead by the

Doctor". This witness gave statement in his cross-examination

that deceased died at Sanjay Gandhi Memorial Hospital

regarding which no document was filed. Although this witness

in his cross-examination also admitted that he was told this by

Balvir Singh. This witness is supporting defence, but this

witness statement is contrary to the oral and documentary

evidence in the file. If the accused admitted deceased to Sanjay

Gandhi Memorial Hospital after she had an attack on

13.5.2007, then there are no documents regarding this in the file

and the defence has not given any statement as to this.

23. Defence has argued that deceased Sudha died on

13.5.2007. On 13.5.2007 her last rites were performed and

complainant got the case registered under· section 156(3) on

2.6.2007. Application was filed very late and this delay has not

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been. explained. I am not in agreement with this argument of

defence. Victim died on 13.5.2007 and it is said that on

13.5.2007 her last rites were performed, but on receiving the

news of death prosecution witness immediately put forward his

doubt. In inquest report it is clearly written that deceased

Sudha's death is suspicious, and postmortem should be done. In

above said inquest report PW-1 is one of the witnesses, he is

deceased's father too. and was examined as PW1. During

evidence witness has said that "Balvir lives in Mangolpuri at

Delhi. Shivcharan was informed by neighbours that Sudha had

died and they brought the dead body to Ratanpur. Next day I

came to Kotdwar. I gave this information to Police station. Then

Police and I came to Ratanpur. There police prepared inquest

report. In inquest report I too was made a witness". As soon as

witness received this information he raised a suspicion on the

incident. Police station was informed. This witness further said

"I wrote a letter to Police station to investigate into her death.

In this regard I made a written complaint to S.D.M., Kotdwar".

This witness further said "then, with my lawyer's help I filed a

petition under section156(3) of Criminal Procedure Code on

which court ordered to register a case". This witness on

receiving information about incident immediately raised

suspicion and asked for a postmortem to be carried out. On

14.5.2007 an application was written to Police station to

investigate into the death of the Deceased. Police made inquest

report and conducted postmortem. In this situation, defence

cannot take benefit of the fact that complaint was registered

under section 156(3) of Criminal Procedure Code, because this

witness had informed Police station and S.D.M. Because of this

information given by him to police, police came to spot and

made inquest report.

24. In viscera report FSL has detected poison, in such

situation the burden was on accused to prove whether deceased

herself consumed poison and whether the deceased was under

mental stress due to which she might have consumed poison, but

defence did not make any statement of such kind during the

whole trial. In the end DW-2 has presented this evidence that

deceased was distressed because of her illness, but during the

whole trial defence argued that deceased was a heart patient

and was on treatment for it. Defence has argued that deceased

was on medication and that because of chemical reaction

medicine can naturally convert into poison, but no evidence was

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produced by defence regarding this, and no medical opinion

was taken that deceased was taking medicine of such nature

which due to chemical reaction could convert into poison in the

body. As this was brought up by defence, in such situation

burden was on them to prove it, but no statement was made

about it. According to Indian Evidence Act section 114(g) - that

evidence which could be and is not produced would, if

produced, be unfavourable to the person who withholds it.

25. In the presenting case this is argued by defence that

because of chemical reaction medicine can turn into poison in

deceased's body, therefore the burden of proof was on defence,

but regarding this no evidence was produced by defence. In such

situation under section 114(g) it is important to presume that if

any evidence was produced by accused then it would have been

against him, because of which no evidence was produced by

defence. But deceased’s death took place at Delhi. Accused

Balvir Singh brought dead body from Delhi to Kotdwar. PW-1

in his examination-in-chief has said that "it is true that my

daughter was living with accused at Delhi". On the basis of

statement given by PW-1, deceased’s death took place at Delhi,

where she was living with accused Balvir Singh. On the basis of

viscera report deceased died of poison. At the time of death only

accused Balvir Singh was present. Accused Maheshwari Devi

was not in Delhi. Since, deceased died at Delhi, in such situation

charge under, section 302 of Indian Penal Code is not found

against Maheshwari Devi.

26. As far as the question of dowry is concerned, PW-1 and

PW-2 have adduced evidence in this matter against accused

Balvir Singh and Shrimati Maheshwari Devi that they are

demanding dowry. This fact is also proved by document letters

exhibit A-1 and exhibit A-2 present in the file. Charge under

section 498A of Indian Penal Code against accused Balvir

Singh and Shrimati Maheshwari Devi is proved beyond doubt.

27. After above arguments I have reached the conclusion that

prosecution has proved that accused Balvir Singh and

Maheshwari Devi mistreated and harassed deceased for dowry

and demanded rupees 1 lakh from deceased. Therefore accused

Balvir Singh and Maheshwari Devi are fit to be convicted under

section 498A/34 Indian Penal Code. Because in this incident

deceased has died and it has come up in the evidence that

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deceased was living with accused Balvir Singh in Delhi,

therefore charge under section 302 of Indian Penal Code

against accused is proved and he is fit to be convicted for the

said charge. As prosecution could not prove that accused

Shrimati Maheshwari Devi was at Delhi with Balvir Singh

during the time of deceased's death and no role of Maheshawari

Devi is proved in deceased's death, therefore no charge under

section 302 of Indian Penal Code is proved against Shrimati

Maheshwari Devi and therefore, she is fit to be discharged of

the above said charge.”

14. 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. The High Court while

affirming the judgment and order of conviction passed by the trial court held as

under:

“3. In the chargesheet it was clearly held out that the death, in

the instant case, was by poisoning. No sooner, the death was

reported, PW1, looking at the dead body, insisted for an inquest

and the same was done. In course of inquest, he expressed doubt

as to the cause of death and demanded post-mortem.

Accordingly, post-mortem was done. The doctor, who conducted

post-mortem, could not determine the reason for the death. He,

accordingly, preserved a part of the heart and the viscera of the

deceased for the purpose of analysis. Viscera was sent for

analysis and Forensic Science Laboratory, Agra, to whom the

same was sent, reported that the same contained poison known

as "Aluminium Phosphide". All these facts were in the charge-

sheet. The death, according to the chargesheet, had taken place

at Delhi, when A1 alone was present with the victim. It is A1,

who caused the dead body of the victim to be brought to

Ratanpuri, Kotdwara. It was not the contention of A1 that the

victim, at any point of time, had any suicidal tendency or that

he suspects that the victim committed suicide. It was the

contention of A1, as is evident from the trend of cross-

examination of the prosecution witnesses, and, in particular,

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suggestions given to the prosecution witnesses that the victim

was suffering from heart disease, for that, matter required

frequent treatment and administration of medicine. It was

suggested that such medicine, so administered, turned into the

aforementioned poison. That being an assertion on behalf of A1,

it was he, who was required to establish the same by tendering

adequate evidence, which he miserably failed. A dead person,

whose cause of death was by poisoning, was, accordingly, found

on the lap of A1. A1 had special knowledge pertaining thereto.

He failed to disclose· anything in relation thereto. The Court

below, in the circumstances, has taken adverse inference against

A 1 under Section 114(g) of the Evidence Act. We think that the

Court below was entitled to take such inference in the backdrop

of the case as depicted above.

4. We, accordingly, find no reason for interference. The Appeal

is dismissed. The judgment of the Court below is affirmed. The

Application (CRMA No. 1744 of 2013) filed for examining

applicant as witness for the defence is not pressed. The same is

dismissed. A1 is in Jail. He will serve out the sentence as

awarded by the Court below. A2 is on bail. Her bail bond is

cancelled. She is directed to surrender forthwith to serve out the

sentence awarded against her.”

15. In such circumstances referred to above, the appeals are here before this

Court with the captioned two appeals.

SUBMISSIONS ON BEHALF OF THE APPELLANTS

16. Ms. Manisha Bhandari, the learned counsel appearing for the appellant

vehemently submitted that the trial court as well as the High Court committed

a serious error in holding the appellants guilty of the offence as enumerated

above. It was argued that the case is one of “No Evidence” so far as the charge

of murder is concerned. According to the learned counsel, the husband was

working in Delhi past sometime before the date of incident whereas the

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deceased along with her son was staying at their native home town in the State

of Uttarakhand. It was also sought to be argued that the deceased was not

keeping well as she was suffering from a heart ailment. It was pointed out from

the post mortem report as well as from the oral evidence of the doctor that the

deceased had an enlarged heart and the ailment relating to heart could be the

cause of sudden death. The learned counsel in the alternative put forward the

theory of suicide. This theory of suicide was put forward by the defence on the

basis of the fact that poison was detected in the viscera, in the form of

“aluminium phosphide”. An attempt was made to argue that the deceased might

have consumed poison and committed suicide as she was tired of her ailment.

17. It was also argued that the evidence of the two defence witnesses would

suggest that there was no harassment of any nature to the deceased either by

the husband nor by the mother-in-law. It was also argued that no sooner the

deceased passed away than the husband immediately informed the family

members of the deceased about her sudden death. It is the husband who carried

the dead body from Delhi to his village at Uttarakhand.

18. 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.

19. The learned counsel submitted that the facts which, the prosecution has

so established should be consistent only with the hypothesis of the guilt of the

accused that is to say, they should not be explainable on any other hypothesis

except that the accused is guilty. The circumstances are not of a conclusive

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nature and tendency. The circumstances do not exclude every possible

hypothesis except the one to be proved.

20. In the last, the learned counsel submitted that this Court may set aside

the conviction for the offence of murder and substitute the same with the

offence of abetting the commission of suicide punishable under Section 306 of

the IPC. It was pointed out that the convict-husband is undergoing sentence

past more than 9 years.

21. In such circumstances referred to above, the learned counsel prayed that

there being merit in both her appeals, those may be allowed.

SUBMISSIONS ON BEHALF OF THE STATE

22. Mr. Jatinder Kumar Bhatia, the learned counsel appearing for the State

vehemently submitted that no error not to speak of any error of law could be

said to have been committed by the High Court as well as by the trial court in

holding the appellants guilty of the respective offences.

23. It was sought to be vehemently argued that the deceased along with her

son was residing at their village whereas the husband was doing some job in

Delhi. The husband on the pretext of medical treatment of the deceased brought

her from the village to Delhi and within three days of their arrival in Delhi, the

incident occurred. It was argued that if the case put forward by the husband is

to be accepted then it is to be believed that while something went wrong with

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the deceased, the husband was very much present because according to the

husband he had immediately taken the deceased to the Sanjay Gandhi Hospital.

On being declared dead at the hospital, he thereafter brought the dead body to

the village.

24. In such circumstances referred to above, 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 convict-

husband 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.

25. 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.

26. The learned counsel laid much stress on the fact that both the appellants

have maintained complete silence especially of the facts which could be said to

be within their personal knowledge. The failure to explain, the circumstances

in which the death occurred is sufficient to hold the convict-husband guilty of

the offence.

Page 18 of 42

27. In such circumstances referred to above, the learned counsel prayed that

there being no merit in the appeals those may be dismissed.

ANALYSIS

28. 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.

29. We take note of the following circumstances emerging from the facts on

record:

a. The cause of death is due to poisoning. The poison detected in the viscera

was aluminium phosphide. Aluminium phosphide is used as a fumigant to

control the insects and rodents in the foodgrains and fields. It is too much for

the convicts to say that the presence of aluminium phosphide in the viscera

could be due to the medicines which the deceased used to take for her heart

ailment. Such medicines even in high dosage would not lead to formation of

aluminium phosphide in the body. This theory which has been put forward

could be termed as something very absurd. No particular question in this

direction has been put to the expert witness (doctor) while he was in the witness

box. In such circumstances, the only inference that can be drawn is that

aluminium phosphide either in the liquid form or in the form of tablets was

Page 19 of 42

procured by the accused husband and the same was administered to the

deceased.

b. We completely rule out the theory of suicide as sought to be put forward

on behalf of the appellants

c. If it is the case of the convict-husband that he had taken the deceased to

the Sanjay Gandhi Hospital at Delhi then he should have led some evidence to

indicate how she was taken to the hospital, in what type of vehicle and who

attended the deceased at the hospital? In the case of the present type, it is very

difficult to believe that if the deceased had been taken to the hospital and

declared dead on arrival, the hospital authorities would allow the convict-

husband to carry the dead body of his wife back home. It would become a

medico-legal case and the hospital would definitely inform the police.

d. The dubious conduct of the convict-husband of not informing the family

members about the death of their daughter. Though in his further statement, the

convict-husband has said that he had informed the family members of the

deceased yet the evidence of PW3 Harender Singh (uncle of the deceased) is

otherwise. In his oral evidence, he has deposed as under:

“My niece Sudha had died on 13.5.2007. Information thereof

was given to me by my brother Shivcharan over the telephone.

Shivcharan was living in Delhi. Then I told Shivcharan to

inquire into the matter. Shivcharan went to the house of Balvir

but he was not there. Then I gave this information in the Police

Station, Kotdwar at 2 o'clock in the night over the telephone and

also informed my brother Virendra. Thereafter, my brother came

to the Police Station, Kotdwar in the morning. I also went to the

police station. Then I had gone to the village of Balvir. There I

Page 20 of 42

saw the dead body of Sudha. I do not know as to whether Sudha

died in Delhi or in the village.”

30. In the aforesaid context, the oral evidence of the PW1 Virendra Singh

(father of the deceased) is also relevant. In his oral evidence, PW1 has stated as

under:

“Balvir Singh took my daughter to Delhi in the year 2007 and

left his son here in the village itself. At the time of going, she

telephoned my brother Harender, who lives in Jhandi Chaur,

and had told him that she does not want to go to Delhi. She

unwillingly went, but I cannot tell how she had gone.

Two days after going to Delhi, my brother received information

that Sudha had died. My brother Shivcharan informed about it.

Balvir was living in Mangolpuri in Delhi. The neighbours told

Shivcharan that Sudha had died. Then, Balvir came to Ratanpur

with the dead body of Sudha. Then, I came to Kotdwar the next

day and gave this information in the police station. Then the

police came with me to Ratanpur. There the police prepared the

inquest report and I was the panch in the inquest proceedings.

There was a mark of injury on the neck of my daughter. I was

suspicious of her death and so, I asked for a post-mortem. The

witness was shown the inquest report Paper No. 9Ka, upon

which he admitted his signature at the opinion of the Panches.

Thereafter the dead body was sent for the post-mortem.”

31. We shall now look into the two letters addressed by the deceased to her

father (PW1). Both these letters have been proved through the oral evidence of

the PW1 and have been exhibited. The letter dated 20.05.2004, Exh. Ka-1 reads

thus:

Page 21 of 42

“Dated : 20.05.04

Respected mother and father, please accept my pranam with

folded hands. At the moment I am alive and pray before the

Almighty for wellbeing of your whole family. Father Saheb, the

reason behind writing this letter is that I am feeling quite

harassed here. There is no faith of life as to when it may come

to an end, any untoward incident may happen with me at any

time. Father Saheb, since the time my marriage was solemnized,

I have been feeling extremely harassed from the acts of my

mother-in-law and husband but I have not told you about this

till date thinking that good sense will prevail with passage of

time but, both of these intend to eliminate me. They say that your

father has not given anything in dowry. They told me that if you

bring Rs.1 lakh cash from your father then only you can stay

here, otherwise you go to your parents’ home, or else we will

eliminate you. I told them that my father is a labourer, and he

cannot arrange Rs. 1 lakh. On account of this, my mother-in-

law and husband have been beating me. They did not provide

me food for several weeks. I remained hungry & thirsty and the

women of village somehow provided me food by hiding

themselves from these people. My mother-in-law even forbade

me from giving milk to my 9-month-old son and forced me to

bring firewood from jungle. Even after that, food was not

provided to me. I have been staying at my matrimonial home

throughout. You invited us several times for various functions

and ceremonies but they neither allowed me to go nor they went

themselves. They say that if you wish to go then bring Rs. One

lakh otherwise you will not be allowed to return here. They say

that your parents and family members should not come here, if

they do then it would not be good for me. My father, I do not

have any support, I am surviving here at mercy of God. I have

been staying here hungry & thirsty. On account of the beatings

being given by them, I have not been keeping good health. Till

date I have concealed all these facts. My father if you can

arrange Rs. One lakh then my life can be saved, otherwise I do

not know as to what will happen with me, any untoward incident

may happen with me. Please do not tell anyone about this letter

otherwise they will eliminate me.

Yours daughter

Village Mangolpuri”

Page 22 of 42

32. The second letter, Exh. Ka-2 reads thus:

“Respected mother and father, accept Pranam from your

daughter Sudha with folded hands. Love to Krishna, Manoj,

Mukesh from their sister. I am well here and pray before

Almighty for your well-being. I need my previous letter which I

had written to you. I am not asking for the letter under pressure

from anyone. I am happy at my home. I heard that uncle Anil is

coming here and so I request you to send that letter through him.

My father, if you wish to see me happy then please send the letter

through Anil uncle. I have to stay here only. I am not asking for

it under pressure from anyone, I want that letter. If you do not

send that letter through Anil uncle then treat that your daughter

is no more. I am very well here. Don’t think more, just send the

letter only, I will wait for the same. Your son-in-law has been

behaving properly with me. If he behaves with me properly, then

everything is alright and you should not be concerned. You just

send the letter through uncle, as I need that letter and there is

no benefit in keeping that letter with you. I am alright here; you

should feel happy about it. Sonu is fine.

Your daughter Sudha.”

PRINCIPLES OF LAW GOVERNING THE APPLICABILITY OF

SECTION 106 OF THE EVIDENCE ACT

33. Section 106 of the Evidence Act, states as under:

“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.”

Page 23 of 42

34. 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”.

35. In Shambhu Nath Mehra v. The State of Ajmer reported in 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.

Page 24 of 42

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).”

36. The aforesaid decision of Shambhu Nath (supra) has been referred to

and relied upon in Nagendra Sah v. State of Bihar reported in (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)

37. In Tulshiram Sahadu Suryawanshi and Another v. State of

Maharashtra reported in (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

Page 25 of 42

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 [(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 Shambu Nath Mehra v. State

of Ajmer [AIR 1956 SC 404 : 1956 Cri LJ 794] the learned

Judge has stated the legal principle thus: (AIR p. 406, para

11)

‘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.

Page 26 of 42

The word “especially” stresses that. It means facts that

are pre-eminently or exceptionally within his

knowledge.’””

(Emphasis supplied)

38. In Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006)

10 SCC 681, this Court was considering a similar case of homicidal death in

the confines of the house. The following observations 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.”

Page 27 of 42

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.

xxx xxx xxx

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)

39. 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 Others reported in (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

Page 28 of 42

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 of the

report:

“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 fossilised 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 recognised by

the law for the court to rely on in conditions such as this.

Page 29 of 42

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)

40. 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 sentenced them to

imprisonment for life.

41. Thus, from the aforesaid decisions of this Court, 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

Page 30 of 42

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.

42. 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.

43. 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

Page 31 of 42

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. In the language of Prof. Glanville Williams:

“All that the shifting of the evidential burden does at the final

stage of the case is to allow the jury (Court) to take into account

the silence of the accused or the absence of satisfactory

explanation appearing from his evidence.”

44. To recapitulate the foregoing : 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. It is not for the prosecution to anticipate and eliminate all possible

defences or circumstances which may exonerate an accused. Again, when a

person does not act with some intention other than that which the character and

circumstances of the act suggest, it is not for the prosecution to eliminate all

the other possible intentions. If the accused had a different intention that is a

fact especially within his knowledge and which he must prove (see Professor

Page 32 of 42

Glanville Williams—Proof of Guilt, Ch. 7, page 127 and following) and the

interesting discussion—para 527 negative averments and para 528—“require

affirmative counter-evidence” at page 438 and foil, of Kenny's outlines of

Criminal Law, 17th Edn. 1958.

45. 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).

46. A manifest distinction exists between the burden of proof and the burden

of going forward with the evidence. Generally, the burden of proof upon any

affirmative proposition necessary to be established as the foundation of an issue

does not shift, but the burden of evidence or the burden of explanation may

shift from one side to the other according to the testimony. Thus, if the

prosecution has offered evidence which if believed by the court would convince

them of the accused's guilt beyond a reasonable doubt, the accused is in a

position where he should go forward with counter-vailing evidence if he has

Page 33 of 42

such evidence. 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

(Wharton's Criminal Evidence, 12th Edn. 1955, Vol. 1, Ch. 2 p. 37 and

foil). Leland v. State reported in 343 U.S. 790=96 L.Ed. 1302, Raffel v. U.S.

reported in 271 U.S. 294=70 L.Ed. 1054.

WHAT IS “PRIMA FACIE CASE” IN THE CONTEXT OF SECTION 106

OF THE EVIDENCE ACT ?

47. The Latin expression prima facie means “at first sight”, “at first view",

or "based on first impression". According, to Webster’s Third International

Dictionary (1961 Edn.), “prima facie case” means a case established by “prima

facie evidence” which in turn means “evi-Ideuce sufficient in law to raise a

presumption of fact or establish the fact in question unless rebutted”. In both

Page 34 of 42

civil and criminal law, the term is used to denote that, upon initial examination,

a legal claim has sufficient evidence to proceed to trial or judgment. In most

legal proceedings, one party (typically, the plaintiff or the prosecutor) has a

burden of proof, which requires them to present prima facie evidence for each

element of the charges against the defendant. If they cannot present prima facie

evidence, or if an opposing party introduces contradictory evidence, the initial

claim may be dismissed without any need for a response by other parties.

48. 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.

49. 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.

50. To explain what constitutes a prima facie case to make Section 106 of

the Evidence Act applicable, we should refer to the decision of this Court in

Mir Mohammad (supra), wherein this Court has observed in paras 36 and 37

respectively as under:

“36. In this context we may profitably utilise the legal principle

embodied in Section 106 of the Evidence Act which reads as

follows: “When any fact is especially within the knowledge of

any person, the burden of proving that fact is upon him.”

37. The section is not intended to relieve the prosecution of its

burden to prove the guilt of the accused beyond reasonable

Page 35 of 42

doubt. But the section 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.”

(Emphasis supplied)

51. We should also look into the decision of this Court in the case of Ram

Gulam Chaudhary and Others v. State of Bihar reported in (2001) 8 SCC 311,

wherein this Court made the following observations in para 24 as under:

“24. Even otherwise, in our view, this is a case where Section

106 of the Evidence Act would apply. Krishnanand Chaudhary

was brutally assaulted and then a chhura-blow was given on the

chest. Thus chhura-blow was given after Bijoy Chaudhary had

said “he is still alive and should be killed”. The appellants then

carried away the body. What happened thereafter to

Krishnanand Chaudhary is especially within the knowledge of

the appellants. The appellants have given no explanation as to

what they did after they took away the body. Krishnanand

Chaudhary has not been since seen alive. In the absence of an

explanation, and considering the fact that the appellants were

suspecting the boy to have kidnapped and killed the child of the

family of the appellants, it was for the appellants to have

explained what they did with him after they took him away.

When the abductors withheld that information from the court,

there is every justification for drawing the inference that they

had murdered the boy. Even though Section 106 of the Evidence

Act may not be intended to relieve the prosecution of its burden

to prove the guilt of the accused beyond reasonable doubt, but

the section would apply to cases like the present, where the

prosecution has succeeded in proving facts from which a

reasonable inference can be drawn regarding death. The

appellants by virtue of their special knowledge must offer an

explanation which might lead the Court to draw a different

inference. We, therefore, see no substance in this submission of

Mr Mishra.” (Emphasis supplied)

Page 36 of 42

52. 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.

FAILURE ON THE PART OF THE APPELLANT -CONVICT IN

OFFERING ANY PLAUSIBLE EXPLANATION IN HIS FURTHER

STATEMENT RECORDED UNDER SECTION 313 OF THE CRPC

53. We take notice of the fact that the appellant-convict (husband) has not

explained in any manner as to what had actually happened to his wife more

particularly when it is not in dispute that the appellant-convict was in company

of his wife i.e., deceased. It is important to bear in mind that the deceased died

on account of poisoning. The poison which was detected in the viscera was

found to be “aluminium phosphide”. Although, the appellant-convict tried to

project a picture that no sooner the deceased fell sick than he immediately took

her to the Sanjay Gandhi Hospital at Delhi, yet, there is no evidence worth the

name in this regard. The appellant-convict was expected to lead some evidence

as to what had transpired at the Sanjay Gandhi Hospital. He has maintained a

complete silence. It is only the appellant-convict who could have explained in

what circumstances and in what manner he had taken his wife to the Sanjay

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Gandhi Hospital and who attended his wife at the hospital. If it is his case, that

his wife was declared dead on being brought at the hospital then it is difficult

to believe that the hospital authorities allowed the appellant to carry the dead

body back home without completing the legal formalities.

54. In the aforesaid context, we must look into the decision of this Court in

the case of Deonandan Mishra v. The State of Bihar reported in AIR 1955 SC

801. In the said decision, there is a very important passage in which, the learned

Judges deal with the effect of failure of the accused to offer any explanation for

circumstances appearing in evidence against him in a prosecution based upon

circumstantial evidence. At the cost of repetition, the law is very clear that the

accused is not bound to offer any explanation, that there is no burden cast upon

him to do so and that the onus of proof does not shift in respect of the vital

matter of guilt at any stage of a criminal trial. But as stated by this Court:

“It is true that in a case of circumstantial evidence not only

should the various links in the chain of evidence be clearly

established, but the completed chain must be such as to rule out

a reasonable likelihood of the innocence of the accused. But in a

case where the various links have been satisfactorily made out

and the circumstances point to the accused as the probable

assailant, with reasonable definiteness and in proximity to the

deceased as regards time and situation, and he offers no

explanation, which, if accepted, though not proved, would afford

a reasonable basis for a conclusion on the entire case consistent

with his innocence, such absence of explanation or false

explanation would itself be an additional link which completes

the chain.” (Emphasis supplied)

55. In our view, the aforesaid passage applies with great force to the facts

and circumstances of the present case.

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56. Even where there are facts especially within the knowledge of the

accused, which could throw a light upon his guilt or innocence, as the case may

be, the accused is not bound to allege them or to prove them. But it is not as if

the section is automatically inapplicable to the criminal trials, for, if that had

been the case, the Legislature would certainly have so enacted. 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.

57. In the aforesaid context, we may also refer to and rely on a decision of

this Court in Kalu alias Laxminarayan v. State of Madhya Pradesh reported

in (2019) 10 SCC 211, wherein this Court after referring to its various other

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decisions on the applicability of Section 106 of the Evidence Act observed as

under:

“16. In view of our conclusion that the prosecution has clearly

established a prima facie case, the precedents cited on behalf of

the appellant are not considered relevant in the facts of the

present case. Once the prosecution established a prima facie

case, the appellant was obliged to furnish some explanation

under Section 313 CrPC with regard to the circumstances under

which the deceased met an unnatural death inside the house.

His failure to offer any explanation whatsoever therefore leaves

no doubt for the conclusion of his being the assailant of the

deceased.”

(Emphasis supplied)

58. We should also look into the decision of this Court in the case of Sawal

Das v. State of Bihar reported in (1974) 4 SCC 193. In the said case the trial

court had come to the conclusion that, upon the established circumstances listed

above, no other inference was left open to the Court except that the appellant

and his father and stepmother had conjointly committed the murder of the

deceased Smt. Chanda Devi on the morning of 28.05.1965 and that the

appellant and his father had then hastily and stealthily disposed off the body in

order to conceal the commission of the offence. It had also taken into account,

in coming to this conclusion, the fact that the appellant had unsuccessfully set

up a plea, in his written statement, that, Smt. Chanda Devi, who was alleged by

him to be wearing a nylon Saree said to have caught fire accidentally while she

was using a kerosene stove in her room, died of extensive burns on her body

and collapsed. The appellant had alleged that Smt. Chanda Devi was debilitated

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and kept bad health due to frequent pregnancies and was also suffering from

asthma, a weak heart, and abdominal complaints. She had given birth to six

children.

59. In view of the aforesaid facts, this Court held as under:

“8. We think that the burden of proving the plea that Smt.

Chanda Devi died in the manner alleged by the appellant lay

upon the appellant. This is clear from the provisions of Sections

103 and 106 of the Indian Evidence Act. Both the trial Court

and the High Court had rightly pointed out that the appellant

had miserably failed to give credible or substantial evidence of

any facts or circumstances which could support the pleas that

Smt. Chanda Devi met her death because her Nylon Saree had

accidentally caught fire from a kerosene stove. The trial Court

had rightly observed that the mere fact that some witnesses had

seen some smoke emerging from the room, with a kitchen

nearby at a time when food was likely to be cooked, could not

indicate that Smt. Chanda Devi's saree had caught fire. Neither

the murdered woman nor the appellant nor any member of his

family was shown to have run about or called for help against

a fire.

9. Learned Counsel for the appellant contended that Section

106 of the Evidence Act could not be called in aid by the

prosecution because that section applies only where a fact

relating to the actual commission of the offence is within the

special knowledge of the accused, such as the circumstances in

which or the intention with which an accused did a particular

act alleged to constitute an offence. The language of Section 106

of the Evidence Act does not, in our opinion, warrant putting

such a narrow construction upon it. This Court held

in Gurcharan Singh v. State of Punjab [AIR 1956 SC 460 :

(1956) Cri LJ 827] that the burden of proving a plea specifically

set up by an accused, which may absolve him from criminal

liability, certainly lies upon him. It is a different matter that the

quantum of evidence by which he may succeed in discharging

his burden of creating a reasonable belief, that circumstance,

absolving him from criminal liability may have existed, is lower

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than the burden resting upon the prosecution to establish the

guilt of an accused beyond reasonable doubt.

10. Neither an application of Section 103 nor of 106 of the

Evidence Act could, however, absolve the prosecution from the

duty of discharging its general or primary burden of proving the

prosecution case beyond reasonable doubt. It is only when the

prosecution has led evidence which, if believed, will sustain a

conviction, or, which makes out a prima facie case, that the

question arises of considering facts of which the burden of proof

may lie upon the accused. The crucial question in the case

before us is : Has the prosecution discharged its initial or

general and primary burden of proving the guilt of the appellant

beyond reasonable doubt?”

(Emphasis supplied)

60. We also pose the very same question like the one posed in Sawal Das

(supra) referred to above, “has the prosecution discharged its initial or general

and primary burden of proving the guilt of the appellants beyond reasonable

doubt?”

61. 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.

62. These appeals remind us of what this Court observed in the case of

Dharam Das Wadhwani v. State of Uttar Pradesh: “The rule of benefit of

reasonable doubt does not imply a frail willow bending to every whiff of

hesitancy. Judges are made of sterner stuff and must take a practical view of

legitimate inferences flowing from evidence, circumstantial or direct.” The role

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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.

63. In the result, both the appeals fail and are hereby dismissed.

64. 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. Her bail bonds stand discharged.

65. Pending applications if any shall stand disposed of.

…………………………………..J.

(J.B. Pardiwala)

………………………………….J.

(Prashant Kumar Mishra)

New Delhi;

Date: October 06, 2023.