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Sec.106 of Evidence Act – Non- explanation of husband how his wife was died when both together in a inside locked room – though all relatives of Accused turned hostile – burden never shifts as the prosecution proved about locking of door with his wife in side a room for whole day – where the wife found dead Apex court held and relied on Section 101 lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially” stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. = State of Rajasthan ….Appellant versus Thakur Singh ….Respondent = 2014 – June. Part -http://judis.nic.in/supremecourt/filename=41708

Sec.106 of Evidence Act – Non- explanation of husband how his wife was died when both together in a inside locked room – though all relatives of Accused turned hostile – burden never shifts as the prosecution proved about locking of door with his wife in side a room for whole day – where the wife found dead  Apex court held  and relied on Section 101 lays down the general rule that in a criminal  case  the burden of proof is on the prosecution  and  Section  106  is  certainly  not intended to relieve it of that duty. On the  contrary,  it  is  designed  to meet certain exceptional cases in which it would be impossible,  or  at  any rate disproportionately difficult, for the prosecution  to  establish  facts which are “especially” within the knowledge of  the  accused  and  which  he could prove without  difficulty  or  inconvenience.  The  word “especially” stresses that. It  means  facts  that  are  pre-eminently  or  exceptionally within his knowledge. =

 

whether the facts and  circumstances

of the case require the application of Section  106  of  the  Evidence  Act,

1872 and if so, whether the respondent/accused is guilty of  the  murder  of

his wife Dhapu Kunwar.  In our opinion, both questions need to  be  answered

in the affirmative and the High Court rendered a decision, perverse in  law,

in acquitting Thakur Singh and reversing the decision of the Trial Court.

Way back in Shambhu Nath Mehra v. State of Ajmer[2] this  Court  dealt

with the interpretation of Section 106 of the Evidence  Act  and  held  that

the section is not intended to shift the burden of proof (in  respect  of  a

crime) on the accused but to take care of a situation where a fact is  known

only to the accused and it is well nigh impossible  or  extremely  difficult

for the prosecution to prove that fact. It was said:

 

“This [Section 101] lays down the general rule that in a criminal  case  the

burden of proof is on the prosecution  and  Section  106  is  certainly  not

intended to relieve it of that duty. On the  contrary,  it  is  designed  to

meet certain exceptional cases in which it would be impossible,  or  at  any

rate disproportionately difficult, for the prosecution  to  establish  facts

which are “especially” within the knowledge of  the  accused  and  which  he

could prove without  difficulty  or  inconvenience.  The  word  “especially”

stresses that. It  means  facts  that  are  pre-eminently  or  exceptionally

within his knowledge. If the section were to be  interpreted  otherwise,  it

would lead to the very startling  conclusion  that  in  a  murder  case  the

burden lies on the accused to prove  that  he  did  not  commit  the  murder

because who could know better than he whether he did or did not.”

the  High  Court  was  completely  in  error  in  relying

primarily on the fact that since most of the material prosecution  witnesses

(all of whom were  relatives  of  Thakur  Singh)  had  turned  hostile,  the

prosecution was unable to prove its case. The position in law,  particularly

Section 106 of the Evidence Act was completely overlooked by the High  Court

making it arrive at a perverse conclusion in law.

 

Conclusion

29.   The judgment and order passed by the High Court is set aside and  that

of the Trial Judge restored.  The State should take the necessary  steps  to

apprehend Thakur Singh so that he can serve out the sentence awarded to  him

by the Trial Court.

30.   The appeal is allowed, as above.

 

2014 – June. Part -http://judis.nic.in/supremecourt/filename=41708
REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 357 OF 2005
State of Rajasthan ….Appellant

versus
Thakur Singh ….Respondent
J U D G M E N T

Madan B. Lokur, J.

1. The question for consideration is whether the facts and circumstances
of the case require the application of Section 106 of the Evidence Act,
1872 and if so, whether the respondent/accused is guilty of the murder of
his wife Dhapu Kunwar. In our opinion, both questions need to be answered
in the affirmative and the High Court rendered a decision, perverse in law,
in acquitting Thakur Singh and reversing the decision of the Trial Court.
The Facts
2. According to the first information report (FIR) lodged by Himmat
Singh (PW-2), the respondent/accused Thakur Singh was married to Dhapu
Kunwar and they had a daughter aged about one year. Thakur Singh was
working as a labourer or lorry driver in Ahmadabad. Since he was not
feeling well, he was brought to the family home in Hingwania in Rajasthan
on 25th February, 1999 where he stayed the whole day.
3. On 26th February, 1999 Thakur Singh’s brother Bagh Singh (PW-3) was
sent to fetch his brother-in-law Gotu Singh (brother of Dhapu Kunwar) who
then came to Hingwania. He seems to have stayed overnight and on 27th
February, 1999 Gotu Singh and Thakur Singh were together for most of the
day. In the evening at about 4.30 p.m. on 27th February, 1999 Gotu Singh
went to Gundli and stayed there overnight. He came back to Hingwania the
next morning (28th February, 1999) at about 7.45 a.m.
4. However, before Gotu Singh arrived in Hingwania on 28th February,
1999 Thakur Singh took his wife Dhapu Kunwar and their daughter inside a
room and bolted it from within. Thereafter, Himmat Singh and Gotu Singh
went from Hingwania by bus to Chanderiya to meet Thakur Singh’s elder
brother Shyam Singh (PW-1). While Gotu Singh did not return to Hingwania,
Himmat Singh returned along with Shyam Singh. This was at about 4.30 p.m.
5. Throughout the day Thakur Singh had locked himself up in a room along
with Dhapu Kunwar and their daughter. Other ladies in the house, namely,
the wife of Bhag Singh, (Chanda Kunwar PW-18) wife of Pratap Singh (PW-6)
and (Pushpa Kunwar PW-20) wife of Ram Singh (PW-7) tried to persuade Thakur
Singh to open the door of the room but he did not do so. Later in the
evening, after Himmat Singh returned with Shyam Singh, they removed the
‘kelu’ from above the house and it was then discovered that Thakur Singh
had killed Dhapu Kunwar. The door of the house was broken open and Thakur
Singh was caught and tied by his brothers and other relatives.

6. At about 6.15 p.m. on the same day, that is 28th February, 1999
Himmat Singh lodged an FIR in the police station giving the facts mentioned
above. There is a positive assertion in the FIR that Thakur Singh had
killed Dhapu Kunwar. Soon after the FIR was registered, the investigating
officer Kuber Singh (PW-23) arrived at the place of the occurrence and took
charge of the investigations and arrested Thakur Singh on the basis of the
allegations made in the FIR.
Proceedings in the Trial Court
7. On completion of investigations, Kuber Singh filed a charge sheet
against Thakur Singh alleging the commission of offences punishable under
Sections 302, 326 and 324 of the Indian Penal Code (IPC). The Upper
District & Sessions Judge (Fast Track) Chittorgarh who heard the case being
Sessions Case No.90/2001 convicted Thakur Singh and found him guilty of an
offence punishable under Section 302 of the IPC and sentenced him to
undergo imprisonment for life and a fine of Rs.1000/-.
8. The Trial Judge found that the prosecution had examined as many as 25
witnesses. Subsequently, on the request of the Public Prosecutor another
witness was called making a total of 26 prosecution witnesses. Of these,
14 were the immediate relatives of Thakur Singh and all of them turned
hostile.
9. The Trial Court found that some basic facts were nevertheless brought
on record. These basic facts were that Dhapu Kunwar was the wife of Thakur
Singh; she was lying dead in the room occupied by her and Thakur Singh, and
Dr. Khem Chand Saini (PW-15) deposed that Dhapu Kunwar had some injuries on
her person but the cause of her death was asphyxia and strangulation.
10. The Trial Judge held, on the basis of the evidence on record, that no
one except Thakur Singh could have caused the death of Dhapu Kunwar. He had
confined her and their daughter inside a room and although no one saw him
killing his wife, since the room was bolted from inside, he had not opened
it for the whole day and the door had to be forced open, no one else could
have caused her death. The Trial Judge found that there was nothing to
suggest that any other person had entered Thakur Singh’s room and there was
no possibility of anybody else having caused Dhapu Kunwar’s death by
strangulation. It was also noted that Thakur Singh gave absolutely no
explanation in his statement under Section 313 of the Code of Criminal
Procedure as to how Dhapu Kunwar had died of asphyxiation inside their
room.
Proceedings in the High Court
11. Feeling aggrieved by the conviction and sentence awarded by the Trial
Court, Thakur Singh preferred D.B. Criminal Jail Appeal No. 500 of 2001 in
the High Court of Rajasthan. By a judgment and order dated 4th August,
2004 (under appeal), the High Court found no evidence to link Thakur Singh
with the death of Dhapu Kunwar. Accordingly, the appeal was allowed and he
was acquitted of the charge of an offence punishable under Section 302 of
the IPC.
12. After the analysis of the evidence, the High Court came to the
following conclusions:-
There is no evidence that anybody saw Thakur Singh entering his room where
Dhapu Kunwar had been murdered. Also, no one saw him coming out from the
room after the murder.
There is no evidence that after allegedly having murdered Dhapu Kunwar,
Thakur Singh came out of his room and was caught by his relatives and
handed over to the police.
There is no evidence that when Thakur Singh came out of his room he was in
possession of any weapon or that his clothes were stained with blood.
13. The High Court also concluded that the Trial Judge was swayed by the
idea that since Thakur Singh was the husband of Dhapu Kunwar, therefore,
there was every possibility that he was in the house and he continued to
remain in the house when Dhapu Kunwar was murdered. The High Court
concluded that though this is a strong circumstance, there must be some
evidence in support of this circumstance and the best evidence would be
that of Gotu Singh who was not produced by the prosecution. Moreover, the
main prosecution witnesses (who happen to be the relatives of Thakur Singh)
had turned hostile.
Discussion and conclusion
14. Questioning the decision of the High Court acquitting Thakur Singh,
the State of Rajasthan has preferred this appeal.
15. We find that the High Court has not at all considered the provisions
of Section 106 of the Evidence Act, 1872.[1] This section provides, inter
alia, that when any fact is especially within the knowledge of any person
the burden of proving that fact is upon him.
16. Way back in Shambhu Nath Mehra v. State of Ajmer[2] this Court dealt
with the interpretation of Section 106 of the Evidence Act and held that
the section is not intended to shift the burden of proof (in respect of a
crime) on the accused but to take care of a situation where a fact is known
only to the accused and it is well nigh impossible or extremely difficult
for the prosecution to prove that fact. It was said:

“This [Section 101] lays down the general rule that in a criminal case the
burden of proof is on the prosecution and Section 106 is certainly not
intended to relieve it of that duty. On the contrary, it is designed to
meet certain exceptional cases in which it would be impossible, or at any
rate disproportionately difficult, for the prosecution to establish facts
which are “especially” within the knowledge of the accused and which he
could prove without difficulty or inconvenience. The word “especially”
stresses that. It means facts that are pre-eminently or exceptionally
within his knowledge. If the section were to be interpreted otherwise, it
would lead to the very startling conclusion that in a murder case the
burden lies on the accused to prove that he did not commit the murder
because who could know better than he whether he did or did not.”
17. In a specific instance in Trimukh Maroti Kirkan v. State of
Maharashtra[3] this Court held that when the wife is injured in the
dwelling home where the husband ordinarily resides, and the husband offers
no explanation for the injuries to his wife, then the circumstances would
indicate that the husband is responsible for the injuries. It was said:
“Where an accused is alleged to have committed the murder of his wife and
the prosecution succeeds in leading evidence to show that shortly before
the commission of crime they were seen together or the offence takes place
in the dwelling home where the husband also normally resided, it has been
consistently held that if the accused does not offer any explanation how
the wife received injuries or offers an explanation which is found to be
false, it is a strong circumstance which indicates that he is responsible
for commission of the crime.”
18. Reliance was placed by this Court on Ganeshlal v. State of
Maharashtra[4] in which case the appellant was prosecuted for the murder of
his wife inside his house. Since the death had occurred in his custody, it
was held that the appellant was under an obligation to give an explanation
for the cause of death in his statement under Section 313 of the Code of
Criminal Procedure. A denial of the prosecution case coupled with absence
of any explanation was held to be inconsistent with the innocence of the
accused, but consistent with the hypothesis that the appellant was a prime
accused in the commission of murder of his wife.
19. Similarly, in Dnyaneshwar v. State of Maharashtra[5] this Court
observed that since the deceased was murdered in her matrimonial home and
the appellant had not set up a case that the offence was committed by
somebody else or that there was a possibility of an outsider committing the
offence, it was for the husband to explain the grounds for the unnatural
death of his wife.
20. In Jagdish v. State of Madhya Pradesh[6] this Court observed as
follows:
”It bears repetition that the appellant and the deceased family members
were the only occupants of the room and it was therefore incumbent on the
appellant to have tendered some explanation in order to avoid any suspicion
as to his guilt.”

21. More recently, in Gian Chand v. State of Haryana[7] a large number of
decisions of this Court were referred to and the interpretation given to
Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. One
of the decisions cited in Gian Chand is that of State of West Bengal v. Mir
Mohammad Omar[8] which gives a rather telling example explaining the
principle behind Section 106 of the Evidence Act in the following words:
“During arguments we put a question to learned Senior Counsel for the
respondents based on a hypothetical illustration. If a boy is kidnapped
from the lawful custody of his guardian in the sight of his people and the
kidnappers disappeared with the prey, what would be the normal inference if
the mangled dead body of the boy is recovered within a couple of hours from
elsewhere. The query was made whether upon proof of the above facts an
inference could be drawn that the kidnappers would have killed the boy.
Learned Senior Counsel finally conceded that in such a case the inference
is reasonably certain that the boy was killed by the kidnappers unless they
explain otherwise.”

22. The law, therefore, is quite well settled that the burden of proving
the guilt of an accused is on the prosecution, but there may be certain
facts pertaining to a crime that can be known only to the accused, or are
virtually impossible for the prosecution to prove. These facts need to be
explained by the accused and if he does not do so, then it is a strong
circumstance pointing to his guilt based on those facts.
23. Applying this principle to the facts of the case, since Dhapu Kunwar
died an unnatural death in the room occupied by her and Thakur Singh, the
cause of the unnatural death was known to Thakur Singh. There is no
evidence that anybody else had entered their room or could have entered
their room. Thakur Singh did not set up any case that he was not in their
room or not in the vicinity of their room while the incident occurred nor
did he set up any case that some other person entered the room and caused
the unnatural death of his wife. The facts relevant to the cause of Dhapu
Kunwar’s death being known only to Thakur Singh, yet he chose not to
disclose them or to explain them. The principle laid down in Section 106 of
the Evidence Act is clearly applicable to the facts of the case and there
is, therefore, a very strong presumption that Dhapu Kunwar was murdered by
Thakur Singh.
24. It is not that Thakur Singh was obliged to prove his innocence or
prove that he had not committed any offence. All that was required of
Thakur Singh was to explain the unusual situation, namely, of the unnatural
death of his wife in their room, but he made no attempt to do this.
25. Learned counsel for Thakur Singh referred to Mahendra Pratap Singh v.
State of Uttar Pradesh[9] to contend that where two views are possible,
one held by the Trial Court for acquitting the accused and the other held
by the High Court for convicting the accused, the rule of prudence should
guide the High Court not to disturb the order of acquittal made by the
Trial Court. This decision is not at all apposite.
26. In our opinion, the High Court has very cursorily dealt with the
evidence on record and has upset a finding of guilt by the Trial Court in a
situation where Thakur Singh failed to give any explanation whatsoever for
the death of his wife by asphyxia in his room. Moreover, the very fact
that all the relatives of Thakur Singh turned hostile clearly gives room
for suspicion and an impression that there is much more to the case than
meets the eye. Even the complainant, Himmat Singh who squarely blamed
Thakur Singh (in the FIR) for the murder of his wife, turned hostile to the
extent of denying his relationship with Thakur Singh.

27. The High Court expressed the view that since the prosecution did not
produce Gotu Singh as its witness, its case ought to fail. In our opinion,
Gotu Singh could not have added to the case of the prosecution. He had
arrived on the fateful day after Thakur Singh had locked himself, Dhapu
Kunwar and their child in their room. He did not even meet them on the
fateful day and was oblivious of the events that had taken place that day.
Therefore, producing him in the witness box would not have been of any
consequence.
28. On a consideration of the facts of the case we are of the opinion
that the approach arrived at by the Trial Court was the correct approach
under the law and the High Court was completely in error in relying
primarily on the fact that since most of the material prosecution witnesses
(all of whom were relatives of Thakur Singh) had turned hostile, the
prosecution was unable to prove its case. The position in law, particularly
Section 106 of the Evidence Act was completely overlooked by the High Court
making it arrive at a perverse conclusion in law.

Conclusion
29. The judgment and order passed by the High Court is set aside and that
of the Trial Judge restored. The State should take the necessary steps to
apprehend Thakur Singh so that he can serve out the sentence awarded to him
by the Trial Court.
30. The appeal is allowed, as above.
………………………………J
(Madan B. Lokur)
………………………………J
(S.A. Bobde)

New Delhi;
June 30, 2014
———————–
[1] [2] 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.
Illustrations
(a) When a person does an act with some intention other than that
which the character and circumstances of the act suggest, the burden of
proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The
burden of proving that he had a ticket is on him.

[3] [4] 1956 SCR 199
[5] [6] (2006) 10 SCC 681
[7] [8] (1992) 3 SCC 106

[9] [10] (2007) 10 SCC 445
[11] [12] (2009) 9 SCC 495

[13] [14] (2013) 14 SCC 420

[15] [16] (2000) 8 SCC 382
[17] [18] (2009) 11 SCC 334

 

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