A.F.R.

RESERVED : 16.10.2019

DELIVERED : 18.12.2019

Court No. - 82

Case :- CRIMINAL APPEAL No. - 4855 of 2015

Appellant :- Dharmendra Kumar

Respondent :- State Of U.P.

Counsel for Appellant :- Rajeev Kumar Saxena,Rajesh

Kumar Singh Ac,Satya Dheer Singh Jadaun

Counsel for Respondent :- G.A.

Hon'ble Harsh Kumar,J.

Hon'ble Umesh Kumar,J.

(Delivered by Hon'ble Harsh Kumar, J)

1.The instant Criminal Appeal has been filed against judgment

and order of conviction passed by Sessions Judge, Auraiya in

Sessions Trial No.52 of 2015 (State Vs. Dharmendra Kumar), Case

Crime No.16 of 2015 under Sections 498A, 304-B & 302 I.P.C.

and Section 4 D.P. Act P.S. Phaphund District Auraiya whereby

the Sessions Judge acquitted the appellant of the charges under

Sections 498-A, 304-B I.P.C. and Section 4 D.P. Act and convicted

him for the offence under Section 302 I.P.C. and sentenced with

life imprisonment and fine of Rs.20,000/- and in case of default in

payment of fine with rigorous imprisonment for an additional

period of one year.

2.The brief facts relating to the case are that Vikram Singh

lodged F.I.R. at P.S. Phaphund on 9.1.2015 at 8.3.0 a.m. against

appellant and 5 members of his family with the averment, that

“he had solemnized marriage of his sister Laxmi hereinafter

referred as “deceased” with appellant Dharmendra Kumar on

21.4.2008 with all dowry according to his capacity but thereafter

she was being harassed and treated with cruelty for non-

fulfillment of demand of a motorcycle & gold chain and on

8.1.2015 her husband Dharmendra Kumar, Sasur Ram Dayal, two

Jeths Sunil and Anil, Sas Shanti Devi and Nanad Rani harassed

her and after committing marpeet at about 4.00 p.m.

strangulated her to death”. On the F.I.R. Case Crime No.16 of

2015 was registered at police station Phaphund and during

investigation, after preparing inquest report, getting the

postmortem of body of deceased conducted, preparing site plan

and collecting evidence, the Investigating Officer submitted

charge sheet only against appellant Dharmendra Kumar, husband

of deceased. The C.J.M. after taking cognizance of the offence

committed the case to sessions and the Sessions Judge on

11.4.2015 framed charges against appellant under Section 498-A,

304-B I.P.C. and Section 4 D.P. Act and on 14.5.2015 framed

alternate charge against him on 14.5.2015 under Section 302

I.P.C. for causing death of his wife Smt. Laxmi by strangulation.

The accused appellant denied the charges and demanded trial.

3.The prosecution in order to prove its case produced Vikram

Singh, first informant the brother of deceased as P.W.-1, Santosh

Kumar relative of deceased as P.W.-2, Sarvesh, brother of

deceased as P.W.-3, Shiv Kumar Chacha of accused as P.W.-4 and

Panchilal neighbour of deceased as P.W.-5, all of whom did not

support prosecution case and were declared hostile. After

completion of prosecution evidence Dr. Sushil Yadav who

conducted postmortem examination of body of deceased, was

summoned and examined as C.W.-1. Thereafter statement of

accused was recorded under Section 313 Cr.P.C. wherein he

stated that “deceased, his wife Laxmi was suffering from fits of

epilepsy due to which she was mentally disturbed and on the day

of incident she committed suicide in his absence”. The accused

appellant produced Harish Chand and Subhash Chand as D.W.-1

and D.W.-2 in his defence. The trial court after hearing parties

counsel, perusal of record and analization of evidence on record

passed impugned judgment and order of conviction, hence this

appeal.

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4.We have heard Shri S.D.Singh Jadaun, Advocate for

appellant and Sri Anil Kumar Kushwaha, learned A.G.A. for State

and perused the record, paper book as well as trial court record

summoned in appeal.

5.Learned counsel for appellant contends that appellant has

been falsely implicated; that appellant had no motive to cause

death of his wife; that the allegations of demand of a motorcycle

and gold chain as dowry from deceased as well as her harassment

for non-fulfillment of above demand are absolutely false and

incorrect; that prosecution utterly failed to prove above charges

of demand of dowry or harassment of deceased for non-fulfillment

of demand of dowry as all the prosecution witnesses have denied

from any such demand or harassment; that in absence of any

evidence regarding alleged demand of dowry or harassment there

may be no motive to appellant for causing dowry death of his

wife; that deceased, the wife of appellant was suffering from fits

of epilepsy since before marriage (as has also been stated by

prosecution witnesses) due to which she was mentally disturbed

and committed suicide in absence of appellant; that at the time of

incident appellant was not at home and he may not be considered

to be the author of strangulation resulting in her death; that

appellant is an innocent person and has been acquitted of the

charges under Section 498A, 304B I.P.C. and Section 4 of Dowry

Prohibition Act and is also entitled for acquittal from the charges

of offence under Section 302 I.P.C; that the impugned judgment

and order of conviction is liable to be set aside and appellant is

liable to be acquitted.

6.Per contra, learned A.G.A. supported the impugned

judgment and order of conviction and contended that it is fully

proved from the evidence on record that appellant is the main

culprit; that it is absolutely wrong to say that deceased was

suffering from fits of epilepsy since before marriage or after

marriage or was living under mental tension due to alleged

ailment or committed suicide after 6 years and 9 months of

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marriage in absence of appellant; that there is no evidence on

record to suggest that deceased was ever treated for alleged

ailment of fits of epilepsy in her maika or Sasural, before or after

marriage; that the prosecution witnesses of fact including the first

informant were won over by accused-appellant and consequently

resiled from the allegations of demand of dowry and harassment

of deceased for non-fulfillment of demand of dowry due to which

trial court very rightly acquitted the appellant of the charges of

offences under Section 498-A, 304-B I.P.C. and Section 4 D.P. Act;

that it is clear from the evidence on record that prosecution

witnesses having been won over by appellant did not dare to

depose truth before Court and went saying falsely that deceased

was suffering from fits of epilepsy since before marriage and

committed suicide due to tension on account of alleged ailment;

that postmortem report of deceased duly proved by C.W.-1 clearly

states that there was continuous ligature mark of 29 cm x 2 cm

over neck of deceased with an abrasion over her chin and death of

Laxmi deceased did take place due to asphyxia as a result of

strangulation; that it is absolutely wrong to say that she

committed suicide rather it is a clear case of homicide; that the

appellant has failed to prove facts specially within his knowledge,

that the appellant also failed or to take or prove any specific plea

of alibi; that it is also not the case of appellant that some

unknown persons or miscreants entered in his house in his

absence and during loot, strangulated his wife; that learned trial

court has categorically discussed entire evidence on record; that

appellant has failed to prove the facts especially within his

knowledge as death of his wife Laxmi did take place within his

dwelling house and he has failed to show that he was not at

home; that there are material contradictions in the statement of

defence witnesses; that from the evidence on record the charges

under Section 302 I.P.C. stands fully proved against appellant

beyond any shadow of reasonable doubt; that the trial court has

rightly convicted appellant for the offence under Section 302

I.P.C; that appeal has been filed with wrong and baseless

allegations and is liable to be dismissed.

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7.Upon hearing parties counsel and perusal of lower court

record as well as paper book and before proceeding further, we

find that in view of arguments advanced by both side, following

points for determination arises in this appeal :-

(1)Whether despite turning hostile of prosecution

witnesses of fact and acquitting appellant from the charges

of offences under Section 498A & 304B I.P.C. and Section 4

D.P. Act, trial Court was justified in convicting him for

offence under Section 302 I.P.C.?

(2)Whether prosecution succeeded in establishing

charges of offence under Section 302 I.P.C. against

appellant ?

(3)Whether provisions of Section 106 of Indian Evidence

Act, were attracted in this case and appellant was required

to prove facts especially within his knowledge, but failed to

discharge his burden?

8. It will not be unnecessary to mention that it is settled

principle of law that in criminal cases until by any express

provision of law with regard to presumption of guilt of an offence,

such as under Section 113 B of Evidence Act for the offence under

Section 304B I.P.C., there is presumption of innocence of accused,

unless his guilt is proved beyond reasonable doubts. In cases

based on circumstantial evidence it is required that circumstances

from which inference of guilt of accused is sought to be drawn

must be cogently and firmly established, unerringly pointing

towards guilt of accused and chain of circumstances should be so

complete that there can be no escape from the conclusion that

within all human probability crime was committed by accused and

none else and circumstances must also be incapable of

explanation to any other hypothesis than that of guilt of accused

and such evidence should not only be consistent with the guilt of

accused but should also be inconsistent with his innocence.

9.Undisputedly, the instant case is not based on ocular/ direct

evidence. According to F.I.R., lodged under Sections 498-A, 304-

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B, I.P.C. and 3/4 D.P. Act deceased Smt. Laxmi, the sister of first

informant was married to appellant in April, 2008 and her dowry

death was committed within 7 years of marriage on 08.01.2015 in

her matrimonial house by strangulation. During trial, all

prosecution witnesses of fact turned hostile, so charges under

Section 498-A I.P.C. were found to be not proved and

consequently presumption of dowry death under Section 113-B of

Indian Evidence Act was not available to prosecution for the

presumptive guilt of accused under Section 304-B I.P.C. In

absence of any such presumption the burden to prove charges

under Section 302 I.P.C. against appellant was on prosecution.

Since the case is not based on ocular evidence and there is no eye

witness account of the incident of murder of Smt. Laxmi, the

prosecution case is to be treated as one based on circumstantial

evidence.

10. Now it is to be seen as to whether in view of the evidence on

record, prosecution has succeeded in proving the chain of

circumstances completely, leaving no possibility of any other

hypothesis except guilt of appellant.

11.Though the burden of proving the guilt of an accused always

lies on prosecution, but there may be certain facts and

circumstances pertaining to a crime that can be especially known

only to the accused, or are virtually impossible for the prosecution

to prove. The law does not enjoin a duty on 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 prosecution

is to lead such evidence which is capable of being lead, having

regard to the facts and circumstances of each case. Certain facts

and circumstances which are especially within knowledge of

accused, are required to be explained by him and if he does not

do so, then it may be a strong circumstance for drawing inference

of his guilt.

12. The first informant P.W.-1 has not supported the allegations

of dowry death and has turned hostile but in his examination in

chief he has proved F.I.R. Ext. A-1 having been lodged by him. It

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is settled principle of law that if the F.I.R. registered under Section

154 Cr.P.C. is proved, it will not be proper for the Court to ignore

its evidentiary value. In the case of Bafle vs. State of Chattisgarh

AIR 2012 SC 2621 the Apex Court has held that

“merely for the reason that first informant turned

hostile, it cannot be said that F.I.R. would lose all of

its relevancy and cannot be looked into.”

13.From postmortem report Ex. A-9 of deceased duly proved

by statement of C.W.-1 Dr. Sushil Yadav, it is very much clear that

cause of death of Smt. Laxmi was asphyxia as a result of

strangulation which is a definite case of homicidal death. A death

by strangulation may only be homicidal death and may not be

suicidal death under any imagination. The postmortem report of

deceased states that there was ligature mark 29 cms x 2 cms

below thyroid all around the neck of deceased which was

horizontal and continuous while her thyroid bone was fractured

and trakia was congested.

14. As per medical jurisprudence fracture of thyroid bone is

very strong indication of violent asphyxia death by compression of

neck by use of external force.

15.In lengthy cross examination with autopsy surgeon, Dr.

Sushil Yadav, nothing material has come out to disbelieve

prosecution case and even no suggestion was put to him about

death of deceased being suicidal as a result of hanging, rather to

the contrary it was suggested that there was no ligature mark at

all around her neck.

16.It is clearly and fully established from above discussed

evidence on record that death of Smt. Laxmi was caused due to

asphyxia as a result of ante mortem strangulation, undisputedly

inside dwelling house of appellant. It is also proved from the

evidence on record that death of Smt.Laxmi is a case of homicidal

death and may not be a case of suicidal death (as claimed by

hostile prosecution witnesses of fact as well as accused and his

defence witnesses). The appellant has not denied to be residing

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alone with deceased in the same house where she died and his

defence witnesses have stated on oath that only appellant and

deceased were living together in the house. Hence it is also fully

proved from the evidence on record that deceased was living with

accused appellant in the same house (in which homicidal death of

his wife Smt. Laxmi did take place as a result of asphyxia due to

strangulation), since before the incident. In view of circumstantial

evidence on record, appellant must be having especial knowledge

of the facts relating to incident and manner in which and by whom

she was strangulated to death, while circumstances indicates that

her death could have been caused only by appellant and none

other than appellant. In these circumstances, the provisions of

Section 106 of Evidence Act are attracted in instant case.

17.Section 106 of Indian Evidence Act provides that when any

fact is especially within the knowledge of any person, the burden

of proving such fact is upon him. When an offence like murder is

committed inside a room of dwelling house, no doubt , the initial

burden to establish charges would be on prosecution, but in such

type of cases, the nature and amount of evidence to be led to

establish the charges, can not be expected of same degree as in

any other case of circumstantial evidence. In instant case since

the prosecution has succeeded in proving that death of

Smt.Laxmi was homicidal one under unnatural and suspicious

circumstances inside the dwelling house of accused, it will be

deemed that prosecution has discharged its burden which now

shifts on inmates of house to give a cogent explanation as to how

her homicidal death did take place.

18.Before proceeding further the law relating to Section 106 of

Indian Evidence Act, in cases of death within dwelling house, as

laid down in number of judgments by Apex Court is being

reproduced as under.

19. In the case of (2012) 1 SCC 10(L) - Prithipal Singh Vs.

State of Punjab the Apex Court held that

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“Section 106 is designed to meet certain exceptional

cases in which it would be impossible for prosecution

to establish certain facts which are particularly within

knowledge of accused. It does not relieve prosecution

of its burden to prove guilt of accused beyond

reasonable doubt and applies to cases where

prosecution has succeeded in proving facts from

which a reasonable inference can be drawn regarding

existence of certain other facts, unless accused by

virtue of his special knowledge regarding such facts

offer any explanation which might drive court to draw

a different inference.”

20.In the case of (2014) 4 SCC 42 - Joshinder Yadav Vs.

State of Bihar where by circumstantial evidence murder was

established by poisoning, even though viscera report from F.S.L.

was not brought on record – but considering corroborative

evidence of father and brother of deceased to be credible, the 3

Judges Bench of Apex Court confirming conviction of husband and

5 of his relatives under Section 302/149, 498-A and 201 I.P.C.

held that

“the attendant circumstances lead to irresistible

conclusion of guilt of accused - How the body of

deceased was found in the river, was within the special

and personal knowledge of husband and his relatives –

burden under Section 106 Evidence Act not discharged

by accused – rather false explanation given. – Adverse

inference was warranted.”

21.In the case of (2006) 10 SCC 681 Trimukh Maroti

Kirkan vs. State of Maharashtra Apex Court has held that,

“Where an accused is alleged to have committed the

murder of his wife and the prosecution succeeds in

leading evidence to show that shortly before the

commission of crime they were seen together or the

offence takes place in the dwelling home where

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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

strong circumstance which indicates that he is

responsible for commission of the crime.”

22.In the case of (1992) 3 SCC 106 Ganeshlal vs. State of

Maharashtra where the husband was prosecuted for murder of

his wife inside his house, the Apex Court held that,

“since death had occurred in his custody, he was

under obligation to give an explanation for the cause

of death in his statement under Section 313 Cr.P.C. A

denial of prosecution case coupled with absence of

any explanation was held to be inconsistent with the

innocence of accused, but consistent with the

hypothesis that the appellant was prime accused in

the commission of murder of his wife.”

23.In the case of (2007) 10 SCC 445 Dnyaneshwar vs.

State of Maharashtra the Apex Court held that

“since deceased was murdered in her matrimonial

home and the appellant had not set up a case that

the offence was committed by somebody else or that

there was a possibility of an outsider committing the

offence, it was for the husband to explain the grounds

for the unnatural death of his wife.”

24.In the case of (2014) 12 SCC 211 State of Rajasthan vs.

Thakur Singh considering scope of Section 106 of the Evidence

Act and Burden of proving facts especially within knowledge of

such person, – In a case of unnatural death of wife of accused in

a room occupied only by both of them and in absence of evidence

of anybody else entering the room and facts relevant to the cause

of death being only known to accused who was not explaining

them, – the Apex Court held that

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“Principles under Section 106 are clearly applicable –

to the case with strong presumption that accused

murdered his wife – holding that High Court erred in

not applying Section 106, reversing conviction of

accused and allowing appeal – at restored the

Conviction under Section 302 I.P.C. passed by trial

court.”

25.The mere fact that all the prosecution witnesses turned

hostile clearly gives room for suspicion and creates an impression

that there is much more to the case than meets the eyes. Even

the complainant Vikram Singh brother of deceased, who squarely

blamed Dharmendra in F.I.R. for the murder of his wife, not only

turned hostile denying demand of dowry and harassment but also

falsely charged his sister Laxmi deceased for committing suicide

due to long ailment of epilepsy since before marriage.

26.It is pertinent to mention that the prosecution witnesses of

fact have not only resiled from the allegations of demand of dowry

and cruelty for non-fulfillment of such demand as well as of dowry

death, rather by way of improvement falsely stated that deceased

was suffering from epilepsy since before marriage and due to

mental tension committed suicide. It indicates that prosecution

witnesses have made an attempt to show that (i) deceased was

suffering from long ailment of fits of epilepsy and (ii) she

committed suicide.

27.The accused-appellant in his statement under Section 313

Cr.P.C. in answer to question no.7 has stated that ^^esjh iRuh y{eh

dks fexhZ ds nkSjk vkrs Fks blfy, oks ekufld :i ls ijs’kku jgrh Fkh] ?kVuk

okys fnu eSa ?kj is ekStwn ugha FkkA iRuh us Lo;a vkRe gR;k dj yhA**.

28.The contention of prosecution witnesses and explanation of

appellant about suicidal death of Smt. Laxmi due to tension on

account of long ailment of epilepsy is absolutely wrong and

incorrect and appears to have been falsely developed in

furtherance of winning over of prosecution witnesses by accused-

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appellant, because Istly, there is nothing on record in the shape

of any medical evidence to show that at any point of time

deceased was suffering from or was treated for epilepsy before or

after marriage and IIndly, it is fully proved from evidence on

record that it is a case of homicidal death and death of Smt.

Laxmi may not be considered to be suicidal death of any

imagination. Hence the improvised version of hostile witnesses is

found to be false and concocted and may not be relied.

29.In order to support above version as well as to discharge his

burden under Section 106 of Evidence Act, accused-appellant has

also produced two witnesses Harish Chandra and Subhash

Chandra as D.W.-1 and D.W.-2 who are neighbours of appellant

and have stated on oath that appellant Dharmendra was living

together with his wife Smt. Laxmi while other brothers were living

separately, and at about 5.00 p.m. on 08.01.2015 when they

were working in fields and appellant Dharmendra was grazing

cattle in nearby fields, villagers informed about suicide by his wife

but they do not know about manner or reason of suicide as to

whether she committed suicide by immolating herself or by

consuming poison or by hanging herself. It is also noteworthy that

neither the name of such villager, who allegedly informed death of

wife of appellant to appellant, D.W.-1 and D.W.-2 in fields has

been disclosed, nor such villager has been produced to

corroborate.

30.It is pertinent to mention that there is nothing on record to

show that deceased was having any cattle. Moreover he could not

dare to say that he was grazing his cattle in fields with or near

D.W.-1 and D.W.-2 and got information from villagers about

suicidal death of his wife (as has been contended by his partisan

witnesses D.W.-1 & D.W.-2). The statements of D.W.-1 and D.W.-

2 are not in consonance with contention of appellant and are also

contradictory to each other as D.W.-1 says that appellant was

walking at a distance from him in his field, while D.W.-2 says that

he was grazing cattle in another field.

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31.It is not the case of accused appellant that some miscreants

had entered his house and strangulated his wife to death or he

had informed the police about unnatural death of his wife by

someone else.

32. The accused appellant was the only person residing in the

same house with deceased and was having especial knowledge of

facts relating to and manner of homicidal death of his wife taken

place inside his house and was required to prove such especial

facts within his knowledge. The bald statement of accused

appellant that he was not at home at the time of incident is not

sufficient to prove his plea of alibi as he could not dare to state

that (i) where and when he came back home (ii) where and from

whom he got knowledge of death of his wife (iii) how he came to

know that his wife has committed suicide (iv) upon finding his

wife fully unconscious whether he contacted any doctor to confirm

as if she is alive and if not, how he was sure that she has died

(v) whether he informed family members of mayaka of deceased

(vi) whether he informed police of unnatural death of his wife.

33.In absence of any such explanation and not proving of the

facts especially within the knowledge of appellant, (who alone was

living with deceased), there can be no reason to disbelieve the

prosecution case and hold appellant to be an innocent.

34. In the instant case in view of evidence on record, under any

imagination no inference can be drawn that at the time of

homicidal death of deceased, her husband, the accused appellant

would have been roaming outside, and someone else would have

entered and strangulated his wife to death, inside his house, for

absolutely no reason. It is not the case of accused appellant that

some miscreants entered his house and committed loot during

which upon protest his wife was strangulated by them. Even in

such a case he would have reported the matter to police in

ordinary course and his conduct in not reporting the matter to

police and opting to abscond, speaks much that how he managed

to win over the prosecution witnesses and pressurized them to tell

a lie regarding alleged suicidal death of his wife.

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35. As far as benefit of doubt is concerned the prosecution has

proved its case beyond all reasonable doubts. In ordinary

prudence when husband and wife were living together there is

presumption of accused being inside home, unless proved

otherwise and no inference of his being outside home may be

drawn in order to give him unreasonable benefit of doubt.

36. In the case of Lal Singh Vs. State of Gujarat (2001) 3 SCC

221 the Apex Court held that

“concept of benefit of doubt is vague. The doubt must

be reasonable one which occurs to a prudent men and

not to a weak or duly vacillating or confused mind. In

spite of presumption of innocence, it is to be judged

on the basis of a reasonable prudent men. Smelling

doubts for the sake of giving benefit of doubt is not

the law of land.”

37.In view of the discussions made above the points mentioned

in para 7 above, are required to be answered as under :-

(1) The prosecution has proved chain of

circumstances from the evidence on record which is so

complete as incapable of explanation of any other

hypothesis than the guilt of accused and is not only

consistent with the guilt of accused but is also

inconsistent with his innocence. The prosecution has

successfully proved its case beyond reasonable doubt.

The attendant circumstances lead to irresistible

conclusion of guilt of accused.

(2)Provisions of Section 106 of Indian Evidence Act

are attracted to the facts and circumstances of instant

case. Accused-appellant has failed to prove facts

especially within his knowledge and discharge his

burden, rather tried to deny homicidal death of his

wife by pretending it to be suicidal death and setting

up an alibi, unsuccessfully.

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(3)The trial Court rightly analyzed the evidence on

record and was not incorrect in convicting appellant

for the change of offence under Section 302 I.P.C.

38.In view of the discussions made above, we are of the

considered view that there is no illegality, incorrectness or

perversity in the impugned judgment and order of conviction. The

learned counsel for appellant has failed to prove any

incorrectness, perversity or illegality in impugned conviction order

and there is no sufficient ground for interfering with or setting it

aside the impugned judgment and order of conviction of appellant

as well as for reversing it to an order of his acquittal under

Section 302 I.P.C.

39.The appeal is devoid of merits and is liable to be dismissed.

40.The appeal is dismissed. The impugned judgment and order

of conviction is affirmed.

41.Office is directed to send back the lower court record

alongwith copy of judgment for necessary action, if any.

Order Date :- 18.12.2019

VS