CRLA/247/2013 of GULAB CHAND Vs STATE on 21 December 2018

Judgment

Date of Judgment: 21/12/2018

(BY THE COURT: PER HON’BLE MEHTA, J.)

Through this appeal under Section 374(2) Cr.P.C., theappellant convict Gulab Chand has approached this Court forassailing the judgment dated 05.02.2013 passed by the learnedAdditional Sessions Judge No.5, Udaipur in Sessions CaseNo.147/2012 convicting and sentencing the appellant as below:

Facts in brief are that Chiranji Lal Prajapat lodged a report(Ex.P/12) to the SHO, Police Station Bhupalpura, District Udaipurat the mortuary Udaipur on 27.07.2010 at about 01.00 pm.alleging inter alia that he was sleeping in his house when hisneighbour Sharda wife of Ramchandra came around andcomplained that her son Gulab was beating his wife Smt.Ranjeeta. On this, Chiranjilal (first informant) and Shardaalongwith Babulal reached the house of Gulab and saw that Gulabwas assaulting his wife Smt. Ranjeeta with a sword. Her blood wasstreaming all around the room. As soon as Gulab saw the firstinformant, he tried to kill himself with the sword by striking it onhis own neck. The first informant mustered courage to snatch thesword from Gulab and in this effort, he himself received injury onhis right hand finger. Gulab’s elder brother Prakash also reachedthere. Gulab fell unconscious due to injury received on his neck.Ranjeeta received grave sword injuries on her neck and face etc.which were inflicted by Gulab Chand. The first informant, Gulab’sbrother Prakash and Babulal, took Gulab as well as Ranjeeta toUdaipur Hospital where the lady was declared dead. Gulab Chand,who tried to commit suicide after killing his wife, was admitted inthe hospital and was undergoing treatment. On the basis of thisreport, an FIR No.201/2010 was registered at the Police Station Bhupalpura for the offences under Sections 302 and 309 IPC andinvestigation commenced.

After completing investigation, charge-sheet was filedagainst the appellant for the offences under Sections 302, 309 and498A IPC and Section 4/25 of the Indian Arms Act in the Court ofthe Judicial Magistrate No.2, City (South), Udaipur from where,the case was committed to the Sessions Judge, Udaipur whotransferred it for trial to the Court of Additional Sessions Judge,No.5, Udaipur for trial. The trial court framed charges against theappellant in the above terms. He pleaded not guilty and claimedtrial. The prosecution examined as many as 22 witnesses insupport of its case and exhibited 39 documents. Upon beingquestioned under Section 313 Cr.P.C., the accused denied theprosecution allegations but did not lead any evidence in defence.Upon conclusion of trial, the trial court convicted and sentencedthe appellant as above. Hence this appeal.

Learned counsel Shri Anuj Sahlot representing the appellantvehemently and fervently urged that there is no evidence on therecord of the case so as to connect the appellant with the crime.All the material prosecution witnesses including the first informantdid not support the prosecution story at the trial and weredeclared hostile. Even the maternal relatives of the deceasednamely PW-7 Sohanlal (brother-in-law), PW--8 Gurcharan(father), PW-9 Manoj (uncle), PW-18 Sundar Bai (mother) andPW-19 Sonu (brother) did not support the allegation that theaccused used to maltreat the deceased. Thus, as per Shri Sahlot,there was no motive for the appellant to have killed the deceased.He urged that the prosecution has to stand on its own legs andmerely by latching on to the presumption available under Section

106 of the Indian Evidence Act, it cannot be absolved from itsduty to prove, the primary evidence required for establishing theguilt of the accused for such a serious offence. He placed relianceupon the following judgments:

(i) Murlidhar & Ors. vs. State of Rajasthan, reported in (2005)11SCC 133;

(ii) Mushir Khan @ Badshah Khan & Anr. vs. State of M.P.,reported in 2010(2) CJ(Cri.) (SC) 359;

(iii) Pratap Singh vs. State of Rajasthan, reported in 2010(4) CJ(Cri.) (Raj.) 1507; and

(iv) Parmal Singh vs. State of Rajasthan through PP, reported in2013(2) CJ (Cri.) (Raj.) 1038; and contended that in all these cases, Hon’ble the ApexCourt as well as the Hon’ble Rajasthan High Court, exhaustivelyconsidered Section 106 of the Evidence Act and held that thegeneral rule in a criminal case is that the burden of proof is on theprosecution and Section 106 of the Evidence Act is certainly notintended to absolve it of that duty. On the contrary, this provisionis designed to meet certain exceptional cases in which it would beimpossible, or at any rate disproportionately difficult for theprosecution to establish facts which are especially within theknowledge of the accused and which he could prove withoutdifficulty or inconvenience. The word 'especially' stresses upon andmeans facts that are pre-eminently or exceptionally withinknowledge of the accused. He contended that in cases where, theprosecution story is based on ocular testimony and where the eyewitnesses do not support the prosecution case, the presumptionunder Section 106 of the Evidence Act cannot come to the aid ofthe prosecution and discharge it from its primary duty to prove the guilt of the accused by leading positive evidence. He thusurges that the appellant is entitled to be acquitted of the chargeswhile setting aside the impugned judgment.

Per contra, learned Public Prosecutor vehemently andfervently opposed the submissions advanced by the appellant’scounsel. He urged that the murder of Smt. Ranjeeta wascommitted in secrecy of the house in which the appellant and thedeceased resided. The case involves a brutal fatal assault uponthe deceased by a sharp edged weapon viz. sword. The appellanthimself tried to cut his neck on seeing the witnesses which facthas been deposed by Chiranji Lal (PW-4) in his examination-in-chief. Chiranji Lal also stated that he tried to snatch the swordfrom Gulab but he could not succeed. He also admitted hissignatures on the FIR (Ex.P/12). He further urged that PW-20 Dr.Manish Kumar Sharma gave evidence regarding the sharp edgedweapon injury existing on the fingers of Chiranji Lal and the sharpedged weapon injury found on the body of the appellant soonafter the incident. Thus, as per the learned Public Prosecutor, therelevant admissible excerpts extracted from the evidence ofChiranji Lal despite his turning hostile at the trial, found sufficientcorroboration from the attending circumstances which aresufficient to draw an inference that the accused appellant was lastseen in the same room with his wife and that on seeing thewitnesses, he tried to cut his own neck by the sword in an attemptto commit suicide. Thus, as per the learned Public Prosecutor,once the prosecution has been successful in establishing thesefacts and circumstances, the burden shifted on to the accusedappellant to explain as to how, his wife received the fatal injuriesin the very same room in which he was present and as to how he himself received the injuries thereafter. He drew the Court’sattention to the statement of the appellant recorded by the trialcourt under Section 313 Cr.P.C. wherein, the appellant, apart fromstating that he had been falsely implicated, did not set up anydefence nor did he give any explanation whatsoever to theclinching incriminating circumstances appearing against theprosecution evidence.

Analysis

Learned Public Prosecutor also referred to the statement ofthe I.O. Manjeet Singh (PW-21) who stated that a day before thefateful incident, a quarrel took place between the appellant andRanjeeta who was injured in the incident. Her medical certificatewas presented by her mother-in-law Smt. Sharda and was provedas Ex.P/35. Learned Public Prosecutor pointed out that apart fromgiving a bald suggestion that the neck of Smt. Ranjeeta was cut,the appellant did not offer any explanation in this regard and thus,as per the learned Public Prosecutor, there is sufficient evidenceon record of the case to establish and prove that the appellantwas the only person who could have and did cause the fatalinjuries to Smt. Ranjeeta by the sword and upon being discoveredand on apprehending the consequences of his foul act, he tried toend his own life. He thus urged that it is a fit case wherein, theprosecution has discharged the burden cast upon it by leadingsufficient evidence requiring invocation of the presumption underSection 106 of the Evidence Act so as to raise a presumptionwhich he failed to discharge the same against the appellant. Onthese grounds, he called upon the Court to dismiss the appeal.

We have considered the submissions advanced at bar andhave perused and re-appreciated the evidence of the prosecution witnesses, the prosecution exhibits and the statement of theaccused recorded under Section 313 Cr.P.C. thread bare.

We are duly satisfied that the prosecution proved thefollowing facts by leading cogent and clinching evidence:

(i) that the appellant and his wife Smt. Ranjeeta were residing inthe same premises where the murder took place and nobody elseresided therein,

(ii) that Smt. Ranjeeta received head injury a day before theincident as is proved from the medical certificate (Ex.P/35).

(iii) that the first informant Chiranji Lal (PW-4) stated that Gulab’smother called him. When he reached the place of incident, he sawthat Gulab was trying to cut his own neck. Gulab’s wife was lyingdown in the room. Police came and broke the door of the room.Gulab and Ranjeeta were taken to the hospital.

(iv) that the appellant, upon being questioned under Section 313Cr.P.C., apart from raising a lame plea of false implication, did notoffer even a shred of explanation as to how his wife received thefatal sword injuries in his presence and as to why, he tried to killhimself on seeing the witnesses.

These circumstances are sufficient to satisfy the Court thatthe appellant was indeed present in the room where the deceasedRanjeeta (his wife) was hacked to death by the blows of a sharpedged weapon. The postmortem report (Ex.P/39) and thestatement of the Medical Jurist (PW-20) establish beyond allmanner of doubt that Smt. Ranjeeta died by sharp edged weaponblows inflicted on her neck and other parts of the body. Thepresence of the appellant in the room and his endeavour to cut hisown neck in an attempt to commit suicide on seeing the first informant Chiranji Lal is also virtually undisputed because nosignificant cross-examination was conducted from Shri Chiranji Lalon this aspect.

In the backdrop of these facts, this Court has to considerwhether, despite the eye witnesses having turned hostile, theprosecution has discharged the burden cast upon it to prove itscase beyond all reasonable doubt or not and if so, whether it canclaim the benefit of the reverse burden of proof provided underSection 106 of the Evidence Act.

We have given our respectful consideration to the principlesenunciated in the judgments cited by the defence counsel ShriSahlot and find that in all these cases, the circumstancesprevailing were that the prosecution could not prove that therelevant facts were especially within the knowledge of the accusedand thus, the applicability of Section 106 of the Evidence Act wasruled out. In the case of Murlidhar & Ors. (supra), theprosecution did not proceed on such footing and applicability ofSection 106 was never pleaded. In that backdrop, the accusedwas acquitted of the charge under Section 302 IPC whilemaintaining the conviction for the offence under Section 364 IPC.

Similar circumstances prevailed in the case of Parmal Singh (supra). In the case of Pratap Singh (supra), the facts involvedsuggested that the accused were found to be in possession ofproperty belonging to the deceased after 16 months of theincident and thus, the presumption under Section 106 was notconsidered sufficient to hold the accused guilt for the offence.

In the case of Mushir Khan @ Badshah Khan (supra),Hon’ble the Supreme Court held that when a murder charge is tobe proved solely on circumstantial evidence, presumption of innocence of the accused must have a dominant role. TheSupreme Court relied upon a Privy Council Judgment in the caseof Nibaran Chandra Roy vs. King Emperor- (11 CWN 1085)wherein, it was held that the prosecution under Section 106 of theEvidence Act may have force in civil or else criminal case.However, we are not persuaded with the said view of the Hon’blePrivy Council. In the case of Mushir Khan @ Badshah Khan(supra), Hon’ble the Supreme Court was not called upon toconsider the prosecution case on the anvil of Section 106 of theEvidence Act as the conviction of the accused was recorded onother grounds.

The facts of the case at hand are closer to those consideredby the Hon’ble Supreme Court in the case of State of Rajasthan vs. Thakur Singh, reported in (2014)12 SCC 211 wherein, it was held as under:- “22. The law, therefore, is quite well settled that the burdenof proving the guilt of an accused is on the prosecution, butthere may be certain facts pertaining to a crime that can beknown only to the accused, or are virtually impossible for theprosecution to prove. These facts need to be explained bythe accused and if he does not do so, then it is a strongcircumstance pointing to his guilt based on those facts.

23. Applying this principle to the facts of the case, sinceDhapu Kunwar died an unnatural death in the room occupiedby her and Thakur Singh, the cause of the unnatural deathwas known to Thakur Singh. There is no evidence thatanybody else had entered their room or could have enteredtheir room. Thakur Singh did not set up any case that he wasnot in their room or not in the vicinity of their room while theincident occurred nor did he set up any case that some otherperson entered the room and caused the unnatural death ofhis wife. The facts relevant to the cause of Dhapu Kunwar’sdeath being known only to Thakur Singh, yet he chose not todisclose them or to explain them. The principle laid downin Section 106 of the Evidence Act is clearly applicable to thefacts of the case and there is, therefore, a very strongpresumption that Dhapu Kunwar was murdered by ThakurSingh.

24. It is not that Thakur Singh was obliged to prove hisinnocence or prove that he had not committed any offence.All that was required of Thakur Singh was to explain theunusual situation, namely, of the unnatural death of his wifein their room, but he made no attempt to do this.

26. In our opinion, the High Court has very cursorily dealtwith the evidence on record and has upset a finding of guiltby the Trial Court in a situation where Thakur Singh failed togive any explanation whatsoever for the death of his wife byasphyxia in his room. Moreover, the very fact that all therelatives of Thakur Singh turned hostile clearly gives roomfor suspicion and an impression that there is much more tothe case than meets the eye. Even the complainant, HimmatSingh who squarely blamed Thakur Singh (in the FIR) for themurder of his wife, turned hostile to the extent of denyinghis relationship with Thakur Singh.”

While considering these circumstances, Hon’ble the SupremeCourt, accepted the appeal against acquittal and overturned theacquittal of the accused which discretion is exercised in the rarestof the rare circumstances. Similar were the facts in the case ofState of Rajasthan vs. Kashi Ram, reported in AIR 2007 SC144 wherein also, the acquittal of the accused recorded by theHigh Court was reversed by taking recourse to Section 106 of theEvidence Act.

In the backdrop of these facts and after considering thejudgments referred to supra in detail, we are of the firm opinionthat the prosecution discharged its obligatory burden of provingthe significant circumstances viz,

(i) the accused and the deceased lived in the same room.

(ii) the deceased had received a head injury at the hands of theaccused a day prior to the fatal assault made on her.

(iii) The mother of the accused called the first informant ChiranjiLal saying that the deceased was being assaulted by the accusedappellant.

(iv) the accused panicked upon seeing the first informant, andtried to sever his own neck in an attempt to end his own life

(v) the body of Ranjeeta was seen lying in a pool of blood in thesame room.

(vi) Nobody else other than the appellant was present in the roomat that time.

(vii) The accused failed to offer a word of explanation when put toquestioning under Section 313 Cr.P.C.

These circumstances unquestionably establish that Smt.Ranjeeta was fatally assaulted by a sword and none other than theaccused was present in the room at that time. On beingdiscovered, the accused tried to sever his own neck with thesword which he was holding. He fell down unconscious and wastaken to the hospital with Smt. Ranjeeta. Thus, without a doubt,whatever transpired in the closed confines of the room where theaccused and his wife (the deceased) resided was especially withinhis exclusive knowledge. Thus, these facts while wereunquestionably and especially within the knowledge of the accusedhad to be explained by him. He miserably failed to discharge thisburden. As such, this Court is of the firm opinion that by failing todischarge the burden cast upon him, the accused has invited theinvocation of Section 106 of Section of the Evidence Act for raisinga presumption of guilt against him. The trial court was therefore,perfectly justified in invoking the said provision and holding theappellant guilty for the charge under Section 302 IPC. Theimpugned Judgment dated 05.02.2013 passed by the learnedAdditional Sessions Judge No.5, Udaipur does not suffer from anyillegality or infirmity whatsoever warranting interference by thisCourt in its appellate jurisdiction.

Hence, the instant appeal is dismissed as being devoid of merit.

(VINIT KUMAR MATHUR),J(SANDEEP MEHTA),J

tikam daiya/-