G H RANJIT KUMAR HALDAR versus STATE OF SIKKIM on 25 July 2019

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SUPREME COURT REPORTS

[2019] 9 S.C.R.

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RANJIT KUMAR HALDAR

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STATE OF SIKKIM

(Criminal Appeal No. 427 of 2014)

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JULY 25, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Penal Code, 1860: s.302 – Murder – Prosecution case wasthat the victim-deceased had gone with his family for work with theaccused – Accused along with his nephew and wife of the deceasedCmurdered the victim and buried his body in the house where theyused to stay – Body of deceased was concealed underneath thewooden flooring at their place of residence and was recovered onthe disclosure statement made by the wife of the deceased afterremoving the flooring – Conviction of appellants by courts below –DOn appeal, held: There is no dispute that the lock of the house wasopened by the Police for the first time after appellant locked thehouse and went to his native village – The house was in hispossession and no one had access to that house and, therefore, theburden of proving the fact that somebody had access to the houseduring his absence was on him in terms of s.106 of the EvidenceEAct – Appellant did not even suggest to the prosecution witnesses ofpossibility of access to the house rented by him – The testimony ofPW-5 that the house was taken on rent by the appellant was proved– Appellant miserably failed to disprove the presumption under s.106of the Evidence Act – In respect of the lady accused, recovery ofFdead body concealed under the wooden planks covered by mudand stones on her disclosure statement was very strong incriminatingcircumstance against her to maintain her conviction – Apart fromthat, there was a statement of PW-2 before whom she had confessed– PW-4, husband of PW-2 supported this testimony – Also the deadbody was identified by PW-3 from the wearing apparels of theGdeceased such as sweater and a mala – None of the witnesses werecross-examined to the effect that dead body was not of the deceased– Both the courts below rightly recorded conviction of the appellantsas the persons responsible for causing death of the deceased –Evidence Act, 1872 – s.106.

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Evidence Act, 1872: s.106 – Burden of proof – s.106 laysdown general rule about the burden of proof – This section wasintroduced not to relieve the prosecution of their duty but wasdesigned to meet the situation in which it is impossible or difficultfor the prosecution to establish facts which were especially withinthe knowledge of the accused – Penal Code, 1860 – s.302.

First Information Report: Murder case – FIR was lodgedoriginally in Bengali language which was later translated in Nepalilanguage – Non-examination of translator – Effect on prosecutioncase – Held: First Information Report was only in respect ofinformation of death – The Investigating Officer carried outinvestigation de-hors the version given by the informant in the FirstInformation Report – Therefore, non-examination of translatorwould not create any doubt on the prosecution case – Penal Code,1860 – s.302.

Dismissing the appeals, the Court

HELD : 1.1 Burden of proof. Section 106 of the EvidenceAct was introduced not to relieve the prosecution of their dutybut it is designed to meet the situation in which it would beimpossible or difficult for the prosecution to establish facts whichare especially within the knowledge of the accused. [Para 14][761-B-C]

Conclusion

1.2 The dead body was recovered in a gunny bag concealedunder the wooden planks covered by mud and stones. The lockof the house was opened by the Police for the first time afterappellant locked the house and went to his native village.Therefore, in the absence of any question on these aspects thatthe house was in his possession and no one had access to thathouse, the burden of proving the fact that somebody had accessto the house during his absence was on him in terms of Section106 of the Act. The testimony of PW-5 that the house was takenon rent by the appellant was proved and on the basis of statementof PW-3, who is a Carpenter and was residing in the same area,the appellant miserably failed to disprove the presumption underSection 106 of the Act. [Para 21] [767-B-E]

2. In respect of the lady accused, there is evidence ofrecovery of dead body concealed in a house on the basis of her A

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Adisclosure statement, where she was allegedly living with theother appellant along with the deceased and her two children.The recovery of dead body concealed under the wooden plankscovered by mud and stones is very strong incriminatingcircumstance against her to maintain her conviction. Apart fromsuch incriminating circumstance, there is a statement of PW-2Bbefore whom she has confessed. [Para 22] [767-E-G]

3. The argument that the person who translated the Bengaliversion into Nepali was not examined when the First InformationReport was lodged is wholly inconsequential. Such FirstInformation Report was only in respect of information of death.CThe Investigating Officer carried out investigation de-hors theversion given by the informant in the First Information Report.Therefore, non-examination of translator would not create anydoubt on the prosecution case. [Para 23] [767-G-H; 768-A]

4. Argument that no DNA Test was conducted to identifyDthe dead body, is not tenable. The dead body was recovered onthe statement of wife of the deceased who stated in the disclosurestatement that dead body of her husband is concealed under thewooden planks in a room which was in her possession. Apartfrom the said statement, PW-3 identified the dead body from theEwearing apparels of the deceased such as sweater and amala. Therefore, the argument raised is not tenable. [Para 24][768-B-C]

Shambu Nath Mehra v. State of Ajmer AIR 1956 SC404 : [1956] SCR 199 ; Trimukh Maroti Kirkan v. StateFof Maharashtra (2006) 10 SCC 681 : [ 2006] 7 Suppl. SCR 156 ; Nika Ram v. State of Himachal Pradesh(1972) 2 SCC 80 : [1973] 1 SCR 428 ; State ofRajasthan v. Thakur Singh (2014) 12 SCC 211 : [2014]8 SCR 18 ; Dnyaneshwar v. State of Maharashtra(2007) 10 SCC 445 : [2007] 4 SCR 248 ; Ram GulabGChaudhary & Ors. v. State of Bihar (2001) 8 SCC311 : [2001] 3 Suppl. SCR 279 – relied on.

Sudam Charan Dash v. State of Orissa & Anr. (2014) 2SCC 141 : [2013] 10 SCR 284 – referred to.

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 427 of 2014.

From the Judgment and Order dated 25.11.2011 of the High Courtof Sikkim at Gangtok in Crl. A. No. 8 of 2010.

With

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Crl. A. No. 458 of 2015.

Ms. Aparna Jha, Ms. Kriti Sondhi, Arvind Sharma, F. I. Choudhuryand Rameshwar Prasad Goyal, Advs. for the Appellant.

Raghvendra Kumar and M/s. Arputham Aruna and Co., Advs.Efor the Respondent.

The Judgment of the Court was delivered by HEMANT GUPTA, J.

1. The present appeals arise out of common judgment datedNovember 25, 2011, maintaining conviction and sentence on the appellantsfor causing death of Netai Mohanta.

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2. An FIR was lodged by Bhola Mohanta (PW-1), brother of thedeceased, on December 28, 2004. The original FIR was lodged in Bengalilanguage (Exh. 1), which was later translated in Nepali language. BholaMohanta (PW-1) in his statement has stated that his brother had gone toRabom Power House at Lachung along with his family with the accusedRanjit Haldar to work as Carpenter. He further stated that his deceasedbrother, Netai Mohanta, was murdered by accused Ranjit Haldar alongwith his nephew Puran Bandhu Mondal and Mamta Mohanta, wife of G

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Athe deceased. He also stated that the body of his deceased brother wasburied inside the house at Rabom where they used to stay.

3. On the basis of his statement, the investigations were undertakenby Rinzing Palzor Bhutia (PW-15). He deposed that he availed theservices of one Krishna Kanta Burman for translating the contents ofBFIR, lodged by Bhola Mohanta, from Bengali language to Nepalilanguage. He visited the place of occurrence at the house belonging toone Jamyang Bhutia (PW-5) and prepared rough sketch map and alsoarranged to take photographs of the place of occurrence. AccusedMamta Mohanta was present at the place of occurrence who was broughtby Bhola Mohanta (PW-1). The statement (Exh. 4) of accused MamtaCMohanta was recorded under Section 27 of the Indian Evidence Act,1872[1]. On the basis of statement, the dead body of deceased NetaiMohanta concealed underneath the wooden flooring at the place ofresidence was recovered after the flooring was removed. Dr. S.D.Sharma (PW-12), a medical consultant of STNM Hospital, was alsoDpresent at the time of recovery of dead body. The dead body was foundpacked in a gunny bag with its opening tied by a rope. The body has notdecomposed but dried to certain extent as the weather condition at Rabombeing cold. The dead body was identified by Ravi Deb (PW-3). Thepostmortem report is Exh. 27. The investigating officer took intopossession one plane (randa), one local made ‘angethi’, one ‘batali’E(carpenter tool) and a lock. He also took into possession two gunnybags smeared with mud, two pieces of rope of different sizes from theplace of occurrence.

4. Learned counsel for the appellants have vehemently arguedthat the original FIR was recorded in Bengali which was translated inFNepali but prosecution has not examined Krishna Kanta Burman whofacilitated translation of the FIR from Bengali to Nepali. The prosecutionhas examined Kumar Tamang (PW-14) who has written the FirstInformation Report as told by Krishna Kanta Burman. Still further, theFIR was not sent to the Magistrate, therefore, the first version in theGFIR is not creditworthy. Since the foundation itself is shaky, the entireprosecution story is doubtful.

5. Learned counsel for the appellants relied upon the judgment inSudam Charan Dash v. State of Orissa & Anr.[2] to contend that 1 for short, ‘Act’H2 (2014) 2 SCC 141

information to the Magistrate is necessary chain of events in theinvestigation. It is also argued that there is no evidence that the deadbody recovered is that of deceased Netai Mohanta as there was noDNA examination conducted. The statements of witnesses in respectof identification of dead body are discrepant therefore, the prosecutioncannot be said to have completed the chain of circumstances so as toconvict the appellants.

6. It is also argued by the learned counsel for the appellants thatappellants were not residing in the house at the time of recovery ofalleged dead body, therefore, the prosecution has failed to prove that thehouse continued to be in possession of the appellants at the time ofrecovery of dead body.

7. The prosecution examined Jamyang Bhutia (PW-5) whodeposed that he has given two rooms in his house on rent to RanjitHaldar. He further deposed that he has engaged him in the constructionwork of his another house. He deposed that one boy who was initiallyresiding with the accused left the place. Later, one more Carpenteralong with his wife and two small children started living together in thesame two rooms. After residing in his house for less than a month, theyall left the house after locking the door. He has not seen them leavingthe house. It is after one month, the Police came to find out whetherany Carpenter was residing in his house. He showed the house wherethe Carpenter was residing. Thereafter, the Police along with the femaleaccused came to his house. The lady accused standing in the dockpointed the spot below the wooden floor of the house where the deadbody of her husband was concealed. The Police removed the woodenplanks from the floor and found the dead body packed in a gunny bag.The dead body was in a decomposed state and foul smell was comingout therefrom. The dead body was examined by a Doctor present there.The witness deposed that he does not reside in the house from wherethe dead body was recovered. He lives in a separate house with hisfamily. The accused lived for less than a month in the said house. Thelady accused joined later. He further deposed that the door of the houseremained under lock and key till the arrival of the Police.

8. Ravi Deb (PW-3) is also a Carpenter. He knew both theaccused. He was informed of the death of Nitai Mohanta and wascalled by the Police. The Police in his presence broke open the lock ofthe door of a portion of the house. The appellant Mamta Mohanta was A

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Aasked where the dead body of her husband was. On her pointing out toa spot under a bed as being the place where dead body of the deceasedwas concealed, the Police with the help of persons present there removedwooden planks. Under the wooden planks, there were stones and mud.After stones and mud was removed, a dead body found concealedwrapped in a jute gunny bag whose opening was tied with a string. TheBdead body was then brought out. He identified the deceased from hiswearing apparels particularly a sweater and one mala (tulsi) around hisneck which he used to wear and also from the appearance of the face.

9. Doma Lepcha (PW-2) is the Vice President of Kazor BlockPanchayat. She deposed that one Bhola Mohanta (PW-1) has filed aCwritten report at his Gram Panchayat in respect of missing of his deceasedbrother Netai Mohanta. Appellant Mamta Mohanta was brought byBhola Mohanta (PW-1). Mamta Mohanta disclosed that her husbandhas been murdered by Ranjit Haldar with ‘randa’ and the dead body hasbeen concealed in the same rented house in which they were last residingDin North Sikkim. She also disclosed that, during the incident, her husbandwas strangulated with a rope by Ranjit Haldar and his nephew PuranBandhu Mondal and she had helped them. Doma Lepcha (PW-2) is awitness of extra-judicial confession of Mamta Mohanta. In cross-examination, Doma Lepcha (PW-2) deposed that she knew the deceasedNetai Mohanta as he was staying near her house.E10. Phurba Lepcha (PW-4) is a resident of Kazor Busty, Manganand a witness of the disclosure statement made by Mamta Mohantawhich led to recovery of dead body.

11. Dr. S.D. Sharma (PW-12) was associated at the time ofFrecovery of dead body. He deposed that the body was in the advancestage of putrefaction. He deposed that time since death was more thantwo weeks and the cause of death was combined effect of antemortemhead injury produced by blunt force and antemortem strangulation byligature. The Medical Legal Autopsy Report is Exh. 25. The postmortemwas conducted at the site where the dead body was recovered.G

12. Bhola Mohanta (PW-1) is the brother of the deceased NetaiMohanta and the informant on whose information the prosecution wasset in motion. He stated that he does not know English, Hindi or Nepaliand only knows Bengali. He deposed that he had never met RanjitHaldar earlier.H

13. Before we examine respective contentions of the learnedcounsel for the parties, it would be appropriate to extract Section 106 ofthe Act, which reads 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.”

14. The general rule is that the burden of proof is on the prosecution.Section 106 of the Act was introduced not to relieve the prosecution oftheir duty but it is designed to meet the situation in which it would beimpossible or difficult for the prosecution to establish facts which areespecially within the knowledge of the accused.

15. In Shambu Nath Mehra v. State of Ajmer[3], the Court heldas under:

“8. …Section 106 is an exception to Section 101. Section 101 laysdown the general rule about the burden of proof.

“Whoever desires any court to give judgment as to any legalright or liability dependent on the existence of facts which heasserts, must prove that those facts exist.”

Illustration (a) says—

“A desires a court to give judgment that B shall be punished for acrime which A says B has committed.

A must prove that B has committed the crime.”

9. This lays down the general rule that in a criminal case theburden of proof is on the prosecution and Section 106 is certainlynot intended to relieve it of that duty. On the contrary, it is designedto meet certain exceptional cases in which it would be impossible,or at any rate disproportionately difficult, for the prosecution toestablish facts which are “especially” within the knowledge ofthe accused and which he could prove without difficulty orinconvenience. The word “especially” stresses that. It means factsthat are pre-eminently or exceptionally within his knowledge.If the section were to be interpreted otherwise, it would lead tothe very startling conclusion that in a murder case the burden lieson the accused to prove that he did not commit the murder because 3 AIR 1956 SC 404

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3 AIR 1956 SC 404

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Awho could know better than he whether he did or did not. It isevident that that cannot be the intention and the Privy Council hastwice refused to construe this section, as reproduced in certainother Acts outside India, to mean that the burden lies on an accusedperson to show that he did not commit the crime for which he istried. These cases are Attygalle v. Emperor [AIR 1936 PC 169]Band Seneviratnev. R. [(1936) 3 All ER 36, 49].

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11. We recognise that an illustration does not exhaust the fullcontent of the section which it illustrates but equally it can neithercurtail nor expand its ambit; and if knowledge of certain facts isas much available to the prosecution, should it choose to exercisedue diligence, as to the accused, the facts cannot be said to be“especially” within the knowledge of the accused. This is a sectionwhich must be considered in a commonsense way; and the balanceof convenience and the disproportion of the labour that would beinvolved in finding out and proving certain facts balanced againstthe triviality of the issue at stake and the ease with which theaccused could prove them, are all matters that must be taken intoconsideration. The section cannot be used to undermine the wellestablished rule of law that, save in a very exceptional class ofcase, the burden is on the prosecution and never shifts.”

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16. In another judgment reported as Trimukh Maroti Kirkan v.State of Maharashtra[4], the Court considered a situation wherein accusedis alleged to have committed the murder of his wife. The prosecutionsucceeded in leading evidence to show that shortly before theFcommission of the crime, they were seen together or the offence takesplace in the dwelling house where the appellant normally resided. TheCourt held as under:

“22. Where an accused is alleged to have committed the murderof his wife and the prosecution succeeds in leading evidence toGshow that shortly before the commission of crime they were seentogether or the offence takes place in the dwelling home wherethe husband also normally resided, it has been consistently heldthat if the accused does not offer any explanation how the wifereceived injuries or offers an explanation which is found to be H4 (2006) 10 SCC 681

false, it is a strong circumstance which indicates that he isresponsible for commission of the crime. In Nika Ram v. State ofH.P. [(1972) 2 SCC 80 : 1972 SCC (Cri) 635 : AIR 1972 SC2077] it was observed that the fact that the accused alone waswith his wife in the house when she was murdered there with“khukhri” and the fact that the relations of the accused with herwere strained would, in the absence of any cogent explanation byhim, point to his guilt. In Ganeshlal v. State ofMaharashtra [(1992) 3 SCC 106 : 1993 SCC (Cri) 435] theappellant was prosecuted for the murder of his wife which tookplace inside his house. It was observed that when the death hadoccurred in his custody, the appellant is under an obligation to givea plausible explanation for the cause of her death in his statementunder Section 313 CrPC. The mere denial of the prosecution casecoupled with absence of any explanation was held to beinconsistent with the innocence of the accused, but consistentwith the hypothesis that the appellant is a prime accused in thecommission of murder of his wife. In State of U.P. v. Dr. RavindraPrakash Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri) 642 : AIR1992 SC 2045] the medical evidence disclosed that the wife diedof strangulation during late night hours or early morning and herbody was set on fire after sprinkling kerosene. The defence ofthe husband was that the wife had committed suicide by burningherself and that he was not at home at that time. The letterswritten by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further theevidence showed that both of them were in one room in the night.It was held that the chain of circumstances was complete and itwas the husband who committed the murder of his wife bystrangulation and accordingly this Court reversed the judgment ofthe High Court acquitting the accused and convicted him underSection 302 IPC. In State of T.N. v. Rajendran [(1999) 8 SCC679 : 2000 SCC (Cri) 40] the wife was found dead in a hut whichhad caught fire. The evidence showed that the accused and hiswife were seen together in the hut at about 9.00 p.m. and theaccused came out in the morning through the roof when the huthad caught fire. His explanation was that it was a case of accidentalfire which resulted in the death of his wife and a daughter. Themedical evidence showed that the wife died due to asphyxia as a AB

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764SUPREME COURT REPORTS

Aresult of strangulation and not on account of burn injuries. It washeld that there cannot be any hesitation to come to the conclusionthat it was the accused (husband) who was the perpetrator of thecrime.”

17. In another Judgment reported as Nika Ram v. State ofBHimachal Pradesh[5], it was held that the absence of any cogentexplanation by the accused would indicate that the accused is responsiblefor commission of the crime. The Court held as under:

“16. It is in the evidence of Girju PW that only the accused andChuri deceased resided in the house of the accused. To similarCeffect are the statements of Mani Ram (PW 8), who is the uncleof the accused, and Bhagat Ram school teacher (PW 16).According to Bhagat Ram, he saw the accused and the deceasedtogether at their house on the day of occurrence. Mani Ram (PW8) saw the accused at his house at 3 p.m., while Poshu Ram (PW7) saw the accused and the deceased at their house on the eveningDof the day of occurrence. The accused also does not deny that hewas with the deceased at his house on the day of occurrence.The house of the accused, according to plan PM, consists of oneresidential room, one other small room and a verandah. Thecorrectness of that plan is proved by A.R. Verma overseer (PWE5). The fact that the accused alone was with Churi deceased inthe house when she was murdered there with the khokhri and thefact that the relations of the accused with the deceased, as wouldbe shown hereafter, were strained would, in the absence of anycogent explanation by him, point to his guilt.”

F18. In State of Rajasthan v. Thakur Singh[6], this Court reiteratedthe principle that burden of proving guilt of the accused is on theprosecution but there may be certain facts pertaining to a crime that canbe known only to the accused. The Court held as under:

“22. The law, therefore, is quite well settled that the burden ofGproving the guilt of an accused is on the prosecution, but theremay be certain facts pertaining to a crime that can be known onlyto the accused, or are virtually impossible for the prosecution toprove. These facts need to be explained by the accused and if he 5 (1972) 2 SCC 80H6 (2014) 12 SCC 211

does not do so, then it is a strong circumstance pointing to his guiltbased on those facts.”

19. In Dnyaneshwar v. State of Maharashtra[7], this Court heldas under:

“10. It has not been disputed before us that the deceased wasmurdered in her matrimonial home. It is not the case of the appellantthat the offence was committed by somebody else. It is also nothis case that there was a possibility of an outsider to commit thesaid offence. One of the circumstances which is relevant is thatwhen the couple was last seen in a premises to which an outsidermay not have any access, it is for the husband to explain theground for unnatural death of his wife. In Raj Kumar PrasadTamarkar v. State of Bihar [(2007) 10 SCC 433: (2007) 3 SCC(Cri) 716: (2007) 1 Scale 19] this Court held: (SCC p. 440, paras22-23)

“22. The conspectus of the events which had been noticed bythe learned Sessions Judge as also by the High Courtcategorically goes to show that at the time when the occurrencetook place, the deceased and the respondent only were in thebedroom and the terrace connecting the same. There was noother person. The cause of death of the deceased Usha Devii.e. by a gunshot injury is not disputed. The fact that the terraceand the bedroom are adjoining each other is not in dispute.

23. The autopsy report shows that ‘a blackening and charring’existed so far as Injury (i) is concerned. The blackening andcharring keeping in view the nature of the firearm, which issaid to have been used clearly go to show that a shot was firedfrom a short distance. Blackening or charring is possible whena shot is fired from a distance of about 2 feet to 3 feet. It,therefore cannot be a case where the death might have beencaused by somebody by firing a shot at the deceased from adistance of more than 6 feet. The place of injury is alsoimportant. The lacerated wound was found over glabella(middle of forehead). It goes a long way to show that the samemust have been done by a person who wanted to kill thedeceased from a short distance. There was, thus, a remote A

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possibility of causation of such type of injury by any otherperson, who was not on the terrace. Once the prosecution hasbeen able to show that at the relevant time, the room and terracewere in exclusive occupation of the couple, the burden of prooflay upon the respondent to show under what circumstancesdeath was caused to his wife. The onus was on him. He failedto discharge the same.”

20. In Ram Gulab Chaudhary & Ors. v. State of Bihar[8], thisCourt held as under:

“24.Even otherwise, in our view, this is a case where Section106 of the Evidence Act would apply. Krishnanand Chaudharywas brutally assaulted and then a chhura-blow was given on thechest. Thus chhura-blow was given after Bijoy Chaudhary hadsaid “he is still alive and should be killed”. The appellants thencarried away the body. What happened thereafter to KrishnanandChaudhary is especially within the knowledge of the appellants.The appellants have given no explanation as to what they didafter they took away the body. Krishnanand Chaudhary has notbeen since seen alive. In the absence of an explanation, andconsidering the fact that the appellants were suspecting the boyto have kidnapped and killed the child of the family of theappellants, it was for the appellants to have explained what theydid with him after they took him away. When the abductors withheldthat information from the court, there is every justification fordrawing the inference that they had murdered the boy. Even thoughSection 106 of the Evidence Act may not be intended to relievethe prosecution of its burden to prove the guilt of the accusedbeyond reasonable doubt, but the section would apply to caseslike the present, where the prosecution has succeeded in provingfacts from which a reasonable inference can be drawn regardingdeath. The appellants by virtue of their special knowledge mustoffer an explanation which might lead the Court to draw a differentinference. We, therefore, see no substance in this submission ofMr Mishra.”

21. With this background, the argument of learned counsel for theappellants is that recovery of dead body was at the instance of Mamta H8 (2001) 8 SCC 311

Mohanta and that there is no recovery in pursuance of disclosurestatement made by appellant-Ranjit Haldar. Therefore, the recovery ofdead body on the statement of wife of the deceased cannot be usedagainst the appellant. We do not find any merit in the said argument.The consistent statement of the prosecution witnesses such as JamyangBhutia (PW-5) corroborated by Ravi Deb (PW-3) is that the house inRabom was taken on rent by the appellant- Ranjit Haldar. The deadbody was recovered in a gunny bag concealed under the wooden plankscovered by mud and stones. The cross-examination conducted on thewitnesses does not suggest that the renting of the premises by RanjitHaldar is disputed in any manner. There is no dispute that the lock ofthe house was opened by the Police for the first time after Ranjit Haldarlocked the house and went to his native village. Therefore, in the absenceof any question on these aspects that the house was in his possessionand no one had access to that house, the burden of proving the fact thatsomebody had access to the house during his absence was on him interms of Section 106 of the Act. The appellant Ranjit Haldar has noteven suggested to the prosecution witnesses of possibility of access tothe house rented by him. The testimony of Jamyang Bhutia (PW-5) thatthe house was taken on rent by Ranjit Haldar is proved and on the basisof statement of Ravi Deb (PW-3), who is a Carpenter and was residingin the same area, the appellant Ranjit Haldar has miserably failed todisprove the presumption under Section 106 of the Act.

22. In respect of the appellant Mamta Mohanta, there is evidenceof recovery of dead body concealed in a house on the basis of herdisclosure statement, where she was allegedly living with the otherappellant along with the deceased and her two children. The recoveryof dead body concealed under the wooden planks covered by mud andstones is very strong incriminating circumstance against Mamta Mohantato maintain her conviction. Apart from such incriminating circumstance,there is a statement of Doma Lepcha (PW-2) before whom she hasconfessed. Phurba Lepcha (PW-4) is the husband of Doma Lepcha(PW-2) who supports this testimony.

23. The argument that Krishna Kanta Burman who translated theBengali version into Nepali was not examined when the above mentionedFirst Information Report was lodged is wholly inconsequential. SuchFirst Information Report was only in respect of information of death.The Investigating Officer has carried out investigation de-hors the AB

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Aversion given by the informant in the First Information Report. Therefore,non-examination of Krishna Kanta Burman does not create any doubton the prosecution case.

24. In respect of an argument that no DNA Test was conductedto identify the dead body, is not tenable. The dead body was recoveredBon the statement of wife of the deceased who has stated in the disclosurestatement that dead body of her husband is concealed under the woodenplanks in a room which was in her possession. Apart from the saidstatement, Ravi Deb (PW-3) identified the dead body from the wearingapparels of the deceased such as sweater and a mala. None of thewitnesses have been cross-examined to the effect that dead body wasCnot of the deceased. Therefore, the argument raised is not tenable.

25. Both the Courts below have rightly recorded conviction of theappellants as the persons responsible for causing death of the deceasedNetai Mohanta. Consequently, we do not find any error in the judgmentpassed by the Courts below which does not warrant any interference.DAccordingly, both the appeals are dismissed.

Devika Gujral

Appeals dismissed.

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