MD. ANOWAR HUSSAIN versus STATE OF ASSAM on 13 October 2022

1. This appeal is directed against the judgment and order dated19.08.2016 in Criminal Appeal No. 100 (J) of 2013, whereby the GauhatiHigh Court dismissed the appeal against the judgment and order dated18.07.2013/25.07.2013, as passed by the Court of Sessions, Goalpara inSessions Case No. 96 of 2012, whereby the appellant was held guilty ofCthe offence under Section 302 of the Indian Penal Code, 1860[1] and wasawarded the punishment of imprisonment for life and fine of Rs.5,000/-with default stipulations.

2. Before dealing with the matter in necessary details, we maydraw a brief outline to indicate the contours of the forthcoming discussion.D2.1. The prosecution case, based on circumstantial evidence, has D2.1. The prosecution case, based on circumstantial evidence, hasbeen that the victim, being the 20-year-old wife of appellant, died on22.10.2010 while residing with the appellant; and that her dead bodywas brought to the police station by her grandfather PW-1 Md. AkbarAli, who made an ejahar (Ex. 1) that ever since marriage the deceasedwas subjected to physical and mental torture by the appellant, who causedEher death by inflicting grievous injuries and his family members wereinvolved in the conspiracy. As per the report (Ex. 2), in the inquest carriedout at the police station in the presence of informant and other witnesses,injuries were noticed around the eyes, cheeks and neck of the deceased.The First Information Report[2] was registered for offences pertaining toFSections 498-A, 302 and 120-B IPC on the ejahar so made by PW-1 andthe dead body was sent for post-mortem examination. As per the post-mortem report (Ex. 4), the dead body carried several injuries and thecause of death had been asphyxia due to throttling.

2.2. It has been the case of prosecution that the appellant wasGabsconding after the incident and was arrested two days later, at a distantplace. After investigation, the charge-sheet was filed against the appellantfor the offence punishable under Section 302 IPC whereas the otheraccused persons were let off for want of positive evidence. One of the 1 ‘IPC’, for short.H2 ‘FIR’, for short.

peculiar features of the case had been that the private witnesses, PW-1to PW-6, did not support the prosecution and they essentially suggestedthat the victim was suffering from illness and died in hospital, where shewas taken for treatment. The appellant himself, in his statement underSection 313 of the Code of Criminal Procedure, 1973[3], endorsed thestatements so made by PW-1 to PW-6 and maintained that his wife diedin the hospital. He also stated that he had gone to bring medicines forhimself due to illness and was arrested by the police at Borabara.

2.3. The Trial Court disbelieved the story put forward by the privatewitnesses and by the appellant about demise of the victim in hospital,particularly with reference to the inquest report drawn at the policestation, duly signed by PW-1 to PW-4 and also with reference to theother circumstances, as established in the testimony of the InvestigatingOfficer[4] PW-7 Anowar Hussain as also PW-8 Dr. Madhab Kr. Rahang.The Trial Court also found that the accused-appellant came out with afalse plea of having gone to the other place to get medicines though nosuch medicines were found in his pocket; and he failed to explain thecause of homicidal death of his wife, who was living with him prior toher death. Thus, the appellant was held guilty of the offence under Section302 IPC on the basis of the chain of circumstances proving his guilt andwas awarded the punishment as noted above. The High Court alsoproceeded with the considerations that weighed with the Trial Courtwhile further observing that when the appellant failed to offer properexplanation to the incriminating circumstances or the explanation offeredby him was found to be untrue, it became an additional link to completethe chain of circumstances.

2.4. In challenge to the conviction, it has been essentially contendedon behalf of the appellant that the consistent assertions of witnessesPW-1 to PW-6 that the deceased died in hospital due to illness cannot beignored, given that they have not been declared hostile or cross-examinedby the prosecution; that the inquest report was unreliable because it wasnot proved as to from where the dead body was brought to the policestation; that the date of arrest of the appellant is questionable withreference to the overwriting in arrest memo; that the place of incidenthas not been proved because the site plan (Ex. 3) was not enclosed withthe charge-sheet; that the medical evidence alone is not decisive of the 3 ‘CrPC’, for short.

4 ‘IO’, for short.

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Amatter; that non-explanation or falsity of explanation as required underSection 106 of the Indian Evidence Act, 1872[5], cannot be a ground forconviction; and that the prosecution has failed to prove motive. On theother hand, it is contended on behalf of the respondent-State that whenthe deceased was the wife of the appellant and they were living together,burden was heavy upon the appellant to explain the cause of unnaturalBdeath of his wife, which he had failed to discharge. It has also beencontended that the appellant was absconding after the incident and wasarrested two days later; and the plea of alibi with reference to his goingto other place for purchasing medicines has not been proved. It hasfurther been contended that the depositions of PW-1 to PW-6 as regardsCthe alleged illness and hospitalisation of the deceased need to be rejectedbecause of want of corroborative evidence and then, being falsified bythe inquest report drawn at the police station. Thus, according to therespondent-State, the concurrent findings recorded in this case againstthe appellant call for no interference.

DRelevant factual and background aspects

3. With reference to the outline as above and looking to thequestions arising for determination in this appeal, the relevant factualand background aspects could be noticed, in brief, as follows:

3.1. As per the prosecution case, the deceased Samina BegumEwas married to the appellant about 3 years prior to the date of the incidentand was living with the appellant in village Kursapakhari Part II(Kumarkhali), falling within the jurisdiction of Police Station, Lakhipur,District Goalpara, Assam. It has been alleged that on 22.10.2010 at about4:00 p.m., PW-1 Md. Akbar Ali brought the dead body of Samina BegumFto the said Police Station, Lakhipur and lodged an ejahar (Ex. 1) statingthat the deceased was the daughter of his nephew and was married tothe appellant but, ever since the marriage, the appellant had been inflictingphysical and mental torture on her; and that day (i.e., on 22.10.2010) ataround 12:00 noon, the appellant assaulted the deceased with lathi andbare hands, as a result of which she died. It was further stated by theGinformant that the incident was an outcome of the conspiracy hatchedby the appellant along with other accused persons, namely SanowarHussain (brother of the appellant), Rabia Khatun (mother of the appellant),Zabeda Khatun (sister-in-law of the appellant), and Md. Rajab Ali (relativeof the appellant). On the basis of the ejahar so made by PW-1 Md.H5 Hereinafter referred to as ‘the Evidence Act’.

Akbar Ali, FIR No. 398 of 2010 was registered at the said Police Station,Lakhipur for offences under Sections 498-A, 302, 120-B IPC.

3.2. As per the assertion of the Investigating Officer, PW-7Anowar Hussain, after registration of FIR, he held the inquest at thepolice station where he noticed injuries on the eyes and cheeks as alsoon the neck of the deceased; and drew up the inquest report (Ex. 2) inthe presence of four persons. Thereafter, the dead body of the victimwas sent for post-mortem examination to Civil Hospital, Goalpara. On23.10.2010, PW-8 Dr. Madhab Kr. Rahang conducted the post-mortemexamination and, in his report Ex. 4, opined that the cause of death hadbeen asphyxia due to throttling, which was homicidal in nature.

3.3. The Investigating Officer, PW-7 Anowar Hussain, assertedthat he visited the place of occurrence and drew the site plan (Ex. 3) buthe did not find the accused-appellant there; and later arrested him on24.10.2010 at Nidanpur market, away from the place of occurrence.

3.4. After completion of investigation, on 29.06.2011, the charge-sheet was filed only against the appellant for the offence under Section302 IPC while the other persons were let off for want of positive evidenceagainst them. On 16.03.2012, the case was committed to the Court ofSessions. The learned Sessions Judge, Goalpara framed the charge underSection 302 IPC against the accused-appellant who pleaded not guiltyand claimed trial.

3.5. In evidence, the prosecution examined eight witnesses andalso produced documentary evidence. After the prosecution evidence,the accused-appellant was examined under Section 313 CrPC on14.05.2013. The accused-appellant did not lead any evidence. Ultimately,after having heard the parties, the Trial Court, by its judgment dated18.07.2013, convicted the appellant of the offence under Section 302IPC and then, after having heard the parties on the question of sentence,by its order dated 25.07.2013, awarded the punishment to the appellantof life imprisonment and a fine of Rs. 5,000/- with default stipulations.

4. For the purpose of appreciating the findings recorded in thiscase, worthwhile it would be to take note of the salient features of theprosecution evidence emanating from the relevant depositions anddocuments as also the salient features emanating from the stand takenby the appellant in his examination under Section 313 CrPC.

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AProsecution Evidence

5. As noticed, the prosecution has examined eight witnesses inthis case. PW-1 to PW-6 were the private witnesses whereas the IOwas examined as PW-7 and the doctor conducting post-mortem wasexamined as PW-8.

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5.1. As per the prosecution case, PW-1 Md. Akbar Ali, grandfatherof the deceased, had taken her dead body to the police station and madethe ejahar (Ex. 1), on the basis whereof FIR in question came to beregistered. He had also signed the report (Ex. 2) said to have been madeafter inquest over the dead body at the police station. He, however,came out with a different narrative in his deposition while suggestingillness and ‘hospitalisation of the deceased. For its relevance, we deemit appropriate to reproduce the entire of his deposition as follows: - C

“Ext. 1 is the Ejahar and Ext. 1(1) is my signature. I know accusedAnowar Hussain, who is present in the dock. Deceased SaminaKhatun was my granddaughter. She was the daughter of TaherAli and the wife of the accused. The incident took place about2(two) years ago. Samina got married to the accused about 2(two)years prior to the incident. She had been leading her conjugal lifewith her husband in another village. Samina had been sufferingfrom illness since 10/15 days prior to the incident. One day, all ofa sudden, I heard that Samina had been taken to hospital. Later Iheard that Samina had died. I only know that she was sick and Iknow nothing else. Their relationship as husband and wife wascordial. Going to Lakhipur Hospital I saw Samina’s dead body.The Ejahar was written by another person. At that time, I was notmentally stable. As I was asked to put my signature, I put mysignature therein accordingly. Later police came and preparedthe inquest report on the dead body. I put my signature on it. Ext.2 is the inquest report and Ext. 2(1) is my signature. I know thesemuch only.

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I don’t know who had written the ejahar and what waswritten in it. The houses of Kitab, Sahar, Anser etc. are therenear the accused person’s house.”

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5.1.1. The relevant contents of the ejahar (Ex. 1), admittedly lodgedby this witness PW-1 Md. Akbar Ali, on the basis whereof FIR in questioncame to be registered, could also be usefully reproduced as under: - “Humble submission is that Must. Samina Begum, daughterof my nephew Sayed Ali of Kantapur, was married off to AnowarHussain of Kursapakhari Part- II (Kumarkhali) village about 3(three) years ago. Since after the marriage accused No. 1 hadbeen inflicting physical and mental tortures on her. Today, i.e. on22/10/10, Anowar Hussain confronted Samina Begum inside hisown house and grievously injured her in various parts of the bodyby assaulting her with lathi and bare hands, as a result of whichshe died. The said incident was the outcome of the conspiracyhatched by the below named accused persons. Be it mentionedherein that the said incident took place at around 12 noon today.

I, therefore, pray to you to take necessary action afterinvestigating into the matter.”

5.2. PW-2 Sofiur Rahman stated that the deceased Samina wasgranddaughter of his cousin; that on the relevant day at around 12:00noon, he heard in the market that Samina had died; and that he went tothe hospital and saw her dead body there.

5.3. PW-3 Barek Ali also stated that the deceased Samina washis granddaughter. Though he asserted that he heard about Samina havingdied after consuming poison and he went to hospital but, did not denyone part of the prosecution case that the inquest report (Ex. 2) wasbearing his signature and that after the inquest, the police sent the deadbody for post-mortem examination. Owing to its relevance, the entire ofhis deposition could also be reproduced as follows: - “I know the complainant Akbar Ali. I know the accused personpresent in the dock. Deceased Samina Khatun was the wife ofthe accused. The incident took place about 1½ years ago.

I heard that as Samina had fallen sick, she had been takento hospital. She died there. I went to the hospital. I heard thatSamina had died as she had consumed poison. By the time Ireached the hospital, Samina had died. I know this much only.

Later the complainant, the grandfather of the deceasedlodged an ejahar, whereupon police came. I too went there. Ext.

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A2 is the inquest report. Ext. 2(2) is my signature. Thereafter, Policesent the dead body to the hospital for post-mortem examination.

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Deceased Samina was my granddaughter. The house ofthe accused is about 1½ k.m. away from that of mine. It is inanother village. Near the accused person’s house there are housesof Zafar, Afzal, Sahar and Kader etc. Kader’s house is close bywhile those of the rest are a little distance away.”

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5.4. PW-4 Sukum Ali also stated in tandem with other witnessesthat Samina died in the hospital but testified to the fact that inquest reportC(Ex. 2) was prepared by the police bearing his signature and then, thedead body was sent by the police to the hospital for post-mortemexamination. His deposition could also be usefully reproduced as under:- “I know complainant Akbar Ali. I know accused Anowar who ispresent in the dock. The deceased was the wife of the accused.DThe occurrence took place about 2(two) years ago.

Samina died in the hospital. Villagers said that Samina hadbeen taken to hospital. I went to the hospital and found her dead.The complainant filed a case in this regard.

Police came and prepared inquest report on the dead body.I put my signature in the inquest report.

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Later police sent the dead body to hospital for post mortemexamination. Ext. 2 is the inquest report and Ext. 2(3) is mysignature therein.

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Declined.”

5.5. PW-5 Dilbar Hussain and PW-6 Musstt. Moimma Bewa statedin their depositions that they heard about Samina having been taken tohospital and having died in the hospital.

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5.6. As noticed, the aforesaid witnesses PW-1 to PW-6 deviatedfrom the prosecution case and asserted that the victim lady fell ill, wastaken to the hospital, and she died in the hospital. However, giving ejahar(Ex. 1) by PW-1 and holding of inquest at the police station with signaturesof witnesses on the inquest report (Ex. 2) are the facts duly established H

from the relevant statements. We shall examine these and cognateaspects at the relevant stage later.

5.7. At this stage, it would be appropriate to take note of theentire of the testimony of the Investigating Officer PW-7 Anowar Hussain,who stated as under: - “On 22/10/2010, I was on duty in Lakhipur Police Station. On thatday, upon receipt of an ejahar from one Akbar Ali, the then Officer-in-charge of Lakhipur Police Station registered a case andentrusted me with the charge of its investigation. Ext. 1(2) is thesignature of the then O/C of Lakhipur Police Station KamalChandra Seal, which I am familiar with.

The dead body of Samina Khatun was also brought (to P.S.)at the time of lodging the Ejahar. The deceased was the wife ofaccused Anowar. I held inquest on the dead body. Ext. 2 is theinquest report and Ext. 2(4) is my signature.

I sent the dead body to Goalpara Civil Hospital for postmortem examination.

I visited the place of occurrence and examined thewitnesses. I drew a sketch map of the place of occurrence. Ext.3 is the said sketch map (under objection) Ext. 3(1) is my signature(under objection).

When I went to the place of occurrence I did not find theaccused there. I enquired about him but nobody could say anything.Later I heard that the accused was roaming at Nidanpur. I wentthere and arrested the accused. I apprehended the accused atNidanpur market, brought him to the police station and formallyarrested him on 24/10/2010. Later the accused person wasforwarded to the court.

Thereafter, the post mortem report was collected and oncompletion of investigation, I filed the charge sheet against accusedAnowar Hussain for commission of offence punishable u/s 302I.P.C.

Ext. 4 is the said charge sheet and Ext. 4(1) is my signaturetherein.

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While holding inquest, I saw injuries in the eyes and cheeks.I also saw injury in the neck of the deceased.

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In the inquest report there is no detailed descriptions of theinjuries. The accused was brought (to P.S.) from Nidanpur market.The name of the person, who gave the information, is not mentionedin the diary. The incident took place around 12 noon on 22/10/2010 and the Ejahar was received at 4 p.m. The place ofoccurrence is about 5/6 km away from the police station. Onecan come there on foot or by a bicycle.

At 10 a.m. on 23[rd] day of the month I went to the place ofoccurrence, but there is no specific mention in the case diary asto how I reached there. H.G. Dilwar Hussain accompanied me.

The complainant brought the dead body along. There is nospecific mention in the case diary as to how it was brought and atwhat time. Ext. 3 was not enclosed with the charge sheet. GDEntry was made, but no certified copy of the same was enclosedwith the case diary.

I hold inquest in the police station. At the time of inquest 4(four) persons were present. I brought those persons from theroad.

The village road is there to the north of the place ofoccurrence and beyond that there is a house. It is not mentionedwhose house it is. There is paddy field to the south. There is nomention as to whose house is there in the further south thereof.Abdulla’s house is in the east and a betel nut plantation is there inthe west. There is no mention whose house is there next to that.”

5.8. PW-8 Dr. Madhab Kr. Rahang had conducted the post mortemand opined that the cause of death was asphyxia as a result of throttling,which was homicidal in nature. He testified to the post-mortem report(Ex. 4) wherein he had reported on the condition of the dead body, inter alia, as under: -

i) Bleeding from both ears.

ii) Tongue was protruded.

iii) Multiple petechial haemorrhages in eyes and face.

iv) Crescentic abrasions on both sides of neck.

v) Bruising and ecchymosis in front of both sides of neck (fingermarks).

vi) Tear of larynx and muscles in front and side of the neck.

vii) Laceration of larynx.

viii) Both lungs were engorged and congested.

ix) Right heart was distended with blood while left was empty.

x) Petechial haemorrhages in liver, spleen and kidneys.

5.8.1. This witness PW-8 Dr. Madhab Kr. Rahang stated in hiscross-examination as under: -

“I have not mentioned the number of marks of finger in my postmortem report. Gristly mark signifies nail mark. Trachea is aseparate part and larynx is a separate part. Trichoid bone hasseparate component. I had not dissected cardiac artery. I hadobserved cardiac arteries; but there was no finding record of anyabnormality. If trachea is blocked, then the person may die. Deathmay occur in the event of blockade of Vegas nerve. It is not afact that without dissection of carotid nerve, it cannot beascertained if there was any pressure of the Vegas. I have notdissected any part of the neck to give the finding. Colour ofecchymosis was not mentioned.

It is not a fact that such kind of death may occur by externalforce of handle of a tube-well or through falling object on theneck. It is not a fact that death was not due to strangulation. It isnot a fact that that I have not given proper finding.”

Stand of the appellant

6. In his examination under Section 313 CrPC, the circumstancesappearing from the evidence led by the prosecution were put to theappellant. While he denied as false the allegations about his having causedthe death of his wife Samina and also denied the assertions made byPW-7, the IO and PW-8, the doctor but then, he specifically stated thatSamina died in hospital and for that matter, stated his agreement withthe assertions made by PW-1 to PW-6. The appellant also stated that hewas arrested at Borabara where he had gone to bring medicines for A

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Ahimself, as he was ill at that time. The relevant question and answers inthe examination of the accused-appellant under Section 313 CrPC readas under: - “******

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BQ2 PW1 Akbor Ali is the grandfather of the deceased andaccording to him Samina your wife was suffering from illness.On a fine morning he heard that Samina your wife was taken tohospital Subsequently he came to know that Samina had died inthe Hospital. What do you have to say in this regard?

CAns: Yes, Samina died at hospital.Q3 PW2 is Sofior Rahman and in his evidence states that on theeventful day he went to a weekly market. At noon hour he cameback home and heard Samina your wife had died. He went to thehospital and had seen the dead-body there. What do you have toDsay in this regard?Ans: Yes.

Q4 PW 3 is Barek Ali and according to him Samina your wifewas taken to hospital as she fell ill. Subsequently he came toknow that Samina your wife died at hospital. He went to the saidEhospital and had seen the dead-body. What do you have to say inthis regard?

Ans. Yes.Q5*********FQ6*********Q7*********

Q6[6] PW7 the IO states that while he visited your house i/c withthis case you were not found there. No body could tell yourGwhereabouts. Subsequently he came to knows that you wereroaming at Nijampur the IO went there and arrested you from theroad of Nijampur. What do you have to say in this regard?

6 This question, though number 8 in continuity, has been mentioned as ‘Q6’ in theHoriginal.

Ans. I was arrested by police not at Nijampur but at Borabara alittle distance away from there; I was there to bring medicines formyself as I was ill at that time.

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6.1. The accused-appellant declined to lead any evidence andhence, the matter proceeded for hearing and ultimately, led to theimpugned judgment and order dated 18.07.2013/25.07.2013.

Trial Court found the appellant guilty and awarded lifeimprisonment

7. Having taken note of the major features of the evidence onrecord and the stand of the prosecution witnesses as also of the accused-appellant, we may summarise the relevant aspects of the decision of theTrial Court and its process of reasoning.

7.1. In the first place, the Trial Court noticed the point calling fordetermination in the matter, i.e., as to “whether the accused committedmurder by intentionally causing the death of his wife Samina Khatun,on the eventful day i.e. 22.10.2010, at about 12:00 noon, at villageKurshapakhri Part II (Kumarkhali) in his house?”

7.2. After taking into consideration the testimony of PW-8 whohad conducted post-mortem examination, the Trial Court observed thatit was clearly established that the cause of death was asphyxia due tothrottling, which was ante-mortem and homicidal in nature; and thoughthe defence had cross-examined PW-8 on certain points, but had failedto derange these findings. The Trial Court observed and held as under: - “…The defence cross examined this doctor on some point; but ithas failed to disrupt any finding of the doctor on the matter thatthe deceased died due to asphyxia as a result of throttling. I havedrawn a serious attention to this piece of evidence and am notinclined to take a contrary view as regards the cause of death ofthe deceased. It was done by throttling. Now, the question is whothe author of this crime. To seek answer of this query, we have torevert back to the evidence on record.”

7.3. Coming to the question as to who was the author of thiscrime, the Trial Court, while dealing with the testimony of PW-1, noticedthat though he alleged in the FIR that the appellant committed the murderof his granddaughter but, took a somersault while deposing in the Court A

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Aand stated that being mentally unstable, he acted to the dictates of othersand affixed his signature on this piece of paper. The Trial Court alsoobserved that this witness attempted to give a different direction to theprosecution story by taking the stand about illness and hospitalisation ofthe victim before her death. The Trial Court deduced that this witnesswas apparently won over, particularly when his narrative was runningBcounter to the evidence of the doctor conducting post-mortemexamination, who had categorically stated that the victim died due tothrottling. The Trial Court also noticed that the other (private) witnesseshad deposed more or less on the same lines, may be in slightly differentdirections; and found no reason to accept their suggestion about demiseCof the victim in hospital due to illness, for obvious inconsistency with theinitial version in the FIR as also for want of clarification of basic questionsas to who, if at all, brought the victim to hospital and when.

7.4. Thereafter, the Trial Court analysed the testimony of PW-7Anowar Hussain, the Investigating Officer who asserted that onD22.10.2010, the FIR and dead body were received at the police stationsimultaneously; that he carried out inquest, prepared the inquest report(Ex. 2), and dispatched the body for post-mortem examination; and thatsubsequently, he visited the site of incident, examined material witnesses,and drew up sketch map of the site (Ex. 3). The Trial Court also rejectedthe objection of defence against acceptance of the site plan (Ex. 3) inEevidence while observing that the defence had failed to satisfy as towhy the said material piece of evidence, be not brought on record. TheTrial Court further noticed from the testimony of PW-7 that when hevisited the place of occurrence, he did not find the appellant; and uponreceiving the information that the appellant was roaming at Nidanpur, heFreached there and took the appellant into custody.

7.5. The Trial Court also took note of the fact that in his statementunder Section 313 CrPC, the appellant took the plea that he was ill atthat time and had gone to Nidanpur to get some medicines but no medicinewas found by PW-7 in his pocket. The Trial Court observed that the pleaGtaken by the appellant was nothing but a lame excuse; and that theappellant had also failed to specify as to who took his wife to hospital, ifat all she had fallen ill.

7.6. Thus, after taking into account the overall evidence on recordand after appreciating all the surrounding factors, the Trial CourtHconcluded that the prosecution had been able to establish the guilt of appellant for commission of offence in question beyond any doubt. Therelevant observations and findings of the Trial Court read as under: - “16. Now, we come to the most material part of the evidence.Here, the I.O. has stated, in no uncertain terms that when hevisited the place of occurrence, he did not find the accused thereon.From the evidence of other witness, it somehow comes to lightthat the victim was shifted to hospital in the morning hour. Now,the question is who had shifted her. All the witnesses deposed indifferent directions; but the justice cannot be left to be defeated,even if all attempts are made by the witnesses to derail the courseof justice. Now, reverting back to the evidence of PW-7, it comesto light that he made enquiries as regards disappearance of thisaccused from his house; but none could furnish any satisfactoryinformation as to why he was missing from his house.Subsequently, the I.O. came to know that the accused wasroaming at Nidanpur. He immediately left for that place and onreaching there, he found the accused roaming aimlessly at thatplace and he, immediately, brought the accused under his custody.In the instant case, none had seen the actual occurrence. Fromthe medical evidence it stands amply established that the deceased/wife of the accused suffered homicidal death. Her neck wasthrottled and she was done to death.

17. From Ext.2, the inquest report, it appears that the I.O. hasnoted that there appeared spot around the neck of the deceasedad the body was stiff. The doctor while performing post mortemexamination, has found that there was rigor mortis present thereon the whole body. There was also bleeding from both ears. Healso noted protruded tongue. Multiple petechial haemorrhge wereseen in eyes and face. Some bruising and eccymosis were alsofound on both sides of the neck. The fact that the death wascaused by act of throttling stands abundantly established in theinstant case. The accused, during the whole trail, kept his mouthshut. There are cogent and convincing evidence on record to holdthat both the accused person and the victim were residing in thesame house together. Death occurred to the wife of the victim.The parents and other members of the house were all presentthere. None deemed it fit to inform the accused as regards herfalling seriously ill if ever there was any tinge truth in it. Even the AB

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Aaccused did not elaborate on the matter as to who took the victimto hospital after ever she had fallen ill. The whole matter hasbeen stage-managed. The involvement of the accused in thisoffence is beyond doubt and is writ large on the face of record.He was roaming here and there somewhere else. He took theplea in his examination u/s 313 Cr.P.C. that he was ill at that time.BSo, he went to Nidanpur to get some medicines; but the I.O. hadnot found any medicine in his pocket. Even this plea remains alame excuse. Just to save the skin from this heinous offence, theaccused has taken such plea. The death of his wife occurred inan unnatural condition. He remained unmoved. He even did notCthrow light as to what had happened prior to her death. It did nogood to the accused to remain taciturn on the entire matter. Deathoccurred due to throttling. The accused must explain whathappened at that time. His keeping mum, during the entire trail,points to his guilty conscience. Upon overall analysis of the entireevidence on record in its right perspective, this court is constrainedDto hold that the prosecution has been able to establish the guilt ofthe accused for commission of offence u/s 302 IPC beyond allshadows of doubt. Hence, the accused is found guilty and he isaccordingly convicted.”

7.7. At the time of hearing on the question of sentence, the TrialECourt noticed an application on behalf of the accused-appellant for re-examining PW-8, the doctor conducting post-mortem, for correction ofcertain expressions occurring in his deposition. The Trial Court foundsuch expressions not having any serious effect on the prosecution caseas regards the cause of death. It was also argued before the Trial CourtFthat there was no mens rea on the part of the appellant and the offencemay be scaled down to Section 304 Part II IPC. However, this submissionwas found unacceptable by the Trial Court looking to the overallcircumstances including the cause of death of the victim and the conductof the appellant, where he fled from the house and offered no explanationas to the cause of death of his wife. Finally, the Trial Court, by its orderGdated 25.07.2013, awarded the punishment to the appellant of lifeimprisonment and a fine of Rs. 5,000/- with default stipulations. Therelevant observations and conclusion of the Trial Court read as under: - “22. I have very attentively gone through the case record andhave taken into account the submission of the learned counsel onH

the matter that, the accused, if ever be held guilty, he should besentenced u/s 304(2); but I do not agree on this matter. There areabundant evidence on record to hold that it was an unnatural death.Death was caused to the effect of strangulation and it happenedin the house of the accused. But the accused fled away there-from and he had no explanation worth his name how death occurredin the house; he remained silent throughout the entire trial and hehad even not taken a plea that it was caused by some other persons.The other witnesses tried to derails the course of justice by tryingto confuse the court on different pleas. Some of them took theplea that the victim died of consumption of poison, other pleadedthat she was suffering from diseases; but there is no evidence onrecord on that point. Rather the evidence so surfaced upon criticalanalysis of the entire evidence on record is justified to the factthat it was none other than accused who caused death of his wifein his house and after causing this heinous offence he escapedthere-from and was loitering in that area i.e. at Nidanpur wherehe was finally detected by the police and rounded up. Theprosecution has succeeded to establish the guilt of the accusedfor commission of offence u/s 302 IPC. There is no mitigatingcircumstance to deal leniently in favour of the accused scalingdown the offence to any other section. Having found abundantevidence on record, this court finds him guilty for committing theoffence u/s 302 IPC and sentence him life imprisonment and afine of Rs. 5,000/-, i/d to suffer RI for three months.”

High Court dismissed the appeal filed by the appellant

8. Aggrieved by the judgment and order aforesaid, the appellantfiled a criminal appeal, being Criminal Appeal No. 100 (J) of 2013, beforethe Gauhati High Court that has been considered and dismissed by theHigh Court by its impugned judgment and order dated 19.08.2016.

8.1. The High Court noticed the fact that the Trial Court hadconvicted the appellant mainly relying upon the post-mortem examinationreport as also the fact that no plausible explanation was given by theappellant regarding the homicidal death of his wife. The High Courtagain took note of the essential features of the evidence and particularlyreferred to the fact that the inquest report (Ex. 2) was drawn at thepolice station itself bearing the signatures, inter alia, of PW-1, PW-2,PW-3 and PW-4. The story as put forward by these and other private AB

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Awitnesses about the death of Samina in hospital due to illness was rejectedwith reference to the fact that there was no corroborative evidence inthat regard and on the contrary, the post-mortem examination report(Ex. 4) falsified the story that she had died due to illness. The HighCourt specifically observed that if at all Samina had died in the hospitaldue to illness, there was no occasion for the aforesaid witnesses to carryBher dead body to the police station.

8.2. Having said so, the High Court referred to a decision of thisCourt in Trimukh Maroti Kirkan v. State of Maharashtra: (2006) 10SCC 681, on the principle that when the incriminating circumstancesare put to the accused and the accused either offers no explanation orChis explanation is found to be untrue, it becomes an additional link in thechain of circumstances against him. The High Court found that, in thepresent case, when the appellant and his wife were living together andthe appellant-husband failed to offer plausible explanation about thehomicidal death of his wife and there was no evidence as regards herDalleged illness or demise in hospital, it was a strong circumstance that healone was responsible for the crime.

8.3. The High Court, therefore, dismissed the appeal whileobserving, inter alia, as under: - “9. As seen above, Akbar Ali (PW-1) not only carried the deadEbody of Samina to the Police Station, he also made the ejaharalleging that appellant had tortured her to death. And at the PoliceStation itself, Investigating Officer Anowar Hussain (PW-7) madeinquest report exhibit 2 on the dead body, which even bears thesignatures of Akbar Ali (PW-1), Barek Ali (PW-3) and Sukum AliF(PW-4). But during the trial, all these witnesses changed theirversions and deposed that Samina died in the hospital due to illness.This, perhaps, they did because of their relations with the appellant.Similar is the evidence of Dilbar Hussain (PW-5) and Mustt.Moimma Beuwa (PW-6). They too have testified that Saminadied in the hospital due to illness. But, no record of any hospitalGwas produced in defence by the appellant to even suggest thatSamina died in the hospital due to illness. On the contrary, postmortem examination report of Dr. Madhab Kumar Rahang (PW-8) completely falsifies the defence of appellant that Samina dieddue to illness. Not only this, Anowar Hussain (PW-7) hascategorically testified that inquest report on the dead body of Samina H

was made at the Police Station, which bears the signatures ofAkbar Ali, Barek Ali and Sukum Ali. These witnesses have notdenied their signatures in the inquest report. Had Samina died inthe hospital due to illness, there was no occasion for Akbar Ali,Barek Ali and Sukum Ali to carry her dead body to the PoliceStation.

10. The Supreme Court in the case of Trimukh Maroti Kirkan vs.State of Maharashtra (2006) 10 SCC 681 has again approved thewell settled principle that when an incriminating circumstance isput to the accused and that accused either offers no explanationor offers an explanation which is found to be untrue, then thesame becomes an additional link in the chain of circumstances tomake it complete. In this case, the Supreme Court has also heldthat where a husband is alleged to have committed the murder ofhis wife and the prosecution succeeds in leading evidence to showthat shortly before the commission of crime they were seen togetheror the offence takes place in the dwelling house where the husbandalso normally resided and if the husband does not offer anyexplanation how the wife received injuries or offers an explanationwhich is found to be false, it was a strong circumstance pointingthat he alone was responsible for the commission of crime.

11. The appellant has not disputed that at the time of incidentSamina lived with him in the same dwelling house. Samina dieddue to throttling and her death was homicidal in nature. She alsohad injuries around her neck, apart from other injuries. No plausibleexplanation has been given by the appellant regarding her homicidaldeath. He has also not been able to produce even iota of evidencethat she was suffering from any illness or died in the hospital dueto illness.

12. We therefore find no merit in this appeal. The appeal isaccordingly dismissed.”

Rival Submissions

9. Assailing the judgment and order aforesaid, learned counsel forthe appellant has put forward a variety of submissions to argue that theappellant has been convicted not on legal evidence but only on suspicion.Learned counsel would argue that the case of the prosecution is basedon circumstantial evidence but, the only circumstances relied upon by AB

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Athe Courts are of medical opinion and non-explanation or purportedlyfalse explanation by the appellant. These circumstances, according tothe learned counsel, do not justify a conclusion on the guilt of the appellantbeyond reasonable doubt.

9.1. The learned counsel has strenuously argued that the date ofBarrest of the appellant remains questionable because, as per the versionof PW-7 Investigation Officer, he was arrested on 24.10.2010 but, thearrest memo shows that he was arrested on 22.10.2010 and then, thesaid date was conveniently altered to 23.10.2010 and the same wasendorsed by learned Chief Judicial Magistrate on 24.10.2010.

C9.2. The learned counsel has also submitted that the place of incidenthas not been proved in this case as the prosecution has only relied uponthe evidence of PW-7 that he inspected the place of incident and haddrawn the site map but, in the case diary, there is no direct mention as tohow did he reach there; and then, the Ex. 3 (site plan) was not enclosedwith the charge-sheet. Even though an objection was raised before theDSessions Court, it was simply brushed aside by stating that the defencehad failed to satisfy as to why this material piece of evidence be notbrought on record. The learned counsel has further submitted that PW-7 did not depose that Ex. 3 was prepared in the presence and as per theinformation of the appellant.E

9.3. Learned counsel for the appellant has further emphaticallysubmitted that all the independent witnesses, PW1 to PW6, have spokenin one voice that the deceased died in hospital due to illness, and therebydid not support the case of prosecution; and the prosecution neitherdeclared them hostile nor cross-examined them to prove that they wereFspeaking falsehood or were won over.

9.4. While assailing the evidence concerning inquest report(Ex. 2), the learned counsel has argued that there is no evidence onrecord as to from which place the dead body was carried to the policestation; neither PW-1 has stated any such fact nor the IO PW-7 hasGspoken about the place from where the dead body was carried. Thismissing link, according to learned counsel, operates against the prosecutioncase.

9.5. Learned counsel for the appellant has further argued, withreference to the principles laid down in Sharad Birdhichand Sarda v.State of Maharashtra: (1984) 4 SCC 116 that the Courts ought not toH

place much reliance on the medical evidence as the same is not ofconclusive proof and is of opinion only. In this regard, the learned counselhas further relied upon the decisions in Balaji Gunthu Dhule v. State ofMaharashtra: (2012) 11 SCC 685 and Nagendra Sah v. State ofBihar: (2021) 10 SCC 725.

9.6. Further, while relying upon the decisions of this Court in Gargiv. State of Haryana: (2019) 9 SCC 738; Shivaji Chintappa Patil v.State of Maharashtra: (2021) 3 SCALE 384; Satye Singh & Anr. v.State of Uttarakhand: (2022) 3 SCALE 534; and Nagendra Sah(supra), it has been submitted that the so-called non-explanation or falsityof explanation as required under Section 106 of the Evidence Act, byitself, cannot be a ground of conviction.

9.7. The learned counsel has submitted that as per the prosecutioncase, the deceased was continuously tortured by the appellant but, in theabsence of the proof of this allegation, prosecution ought to have provedthe motive behind the alleged incident; and while relying on ShivajiChintappa Patil (supra) as also Anwar Ali and Anr. v. State ofHimachal Pradesh: (2020) 10 SCC 166 and Nandu Singh v. Stateof Madhya Pradesh (Now Chhattisgarh): Criminal Appeal No. 285of 2022, decided on 25.02.2022, it has been argued that motive havingnot been proved, conviction of the appellant remains unsustainable.

9.8. The learned counsel has further submitted that if two viewsare possible, as found in the present case, then the view in favour of theaccused (appellant herein) must be accepted, by placing reliance on afew decisions like that in Jose Alias Pappachan v. Sub-Inspector ofPolice, Koyilandy and Anr.: 2016 (10) SCC 519. The learned counselhas also referred to the decision in Sarwan Singh v. State of Punjab:AIR 1957 SC 637 to submit that suspicion, howsoever strong, cannottake the place of proof.

10. Per contra, learned counsel for respondent-State hasemphatically submitted that the prosecution has produced relevantevidence and the circumstances have been established beyond reasonabledoubt so as to complete the chain of circumstances and ruling out anyother hypothesis except the guilt of the appellant.

10.1. Learned counsel for respondent-State has relied upon thepost-mortem report (Ex. 4) read with the deposition of PW-8 and theinquest report (Ex. 2) while submitting that there were ante-mortem A

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Ainjuries on the body of the deceased and the cause of death was asphyxiadue to throttling. Further, while placing reliance on the testimony of PW-7, it has been argued that the appellant was absconding after the incidentand was arrested from a different location after two days; and that theappellant miserably failed to prove his plea of alibi that he was ill and hadgone to purchase medicine.B

10.2. Learned counsel for respondent-State has forcefullysubmitted that the false explanation given by the appellant that his wifedied in the hospital due to illness becomes an additional link to completethe chain of circumstances, as the appellant failed to adduce any evidenceof hospital record concerning the treatment of the deceased or discharge/Cdeath certificate, to prove that his wife indeed died in the hospital. In thisregard, reliance has been placed on the said decision in Trimuk MarotiKirkan v. State of Maharashtra: (2006) 10 SCC 681.

10.3. Learned counsel has further submitted that in case the deathof victim would have occurred due to an illness and/or in the hospital,Dher dead body would not have been taken to the police station for lodgingthe FIR nor the inquest would have revealed the injuries as reported inthe inquest report (Ex. 2). Moreover, in the present case, when the offencehas been committed in the matrimonial home where the appellant andthe deceased were residing together, the burden under Section 106 ofEthe Evidence Act, was heavy upon the appellant to explain as to how thevictim sustained so many grievous injuries and died because of throttling.The emphasis of learned counsel has been that when the appellantasserted that the deceased died due to illness in hospital, the burden toprove the facts regarding illness and hospitalisation was upon the appellantunder Section 106 of the Evidence Act. Furthermore, when the appellantFstated in his statement under Section 313 CrPC that he was ill and hadgone to Nidanpur to purchase medicines for himself, the burden to provehis alibi was also upon the appellant, but the explanation provided by himwas found to be false.

10.4. The learned counsel for respondent-State has again reliedGupon Trimuk Maroti Kirkan (supra) to submit that in the cases ofcircumstantial evidence, when offence is committed in the confines of ahome, though the initial burden would be on the prosecution but the natureand amount of evidence to be led by it to establish the charge cannot beof the same degree as is required in other cases of circumstantial H

evidence. The learned counsel has also relied upon several other decisions,like Alber Oraon v. State of Jharkhand: (2014) 12 SCC 306 andSudru v. State of Chhattisgarh: (2019) 8 SCC 333.

10.5. The learned counsel for respondent-State has placed relianceon Ujjagar Singh v. State of Punjab: (2007) 13 SCC 90 and VivekKalra v. State of Rajasthan: (2014) 12 SCC 439 to submit that wherechain of circumstances establishes beyond reasonable doubt that it isthe accused who committed the offence, the Court cannot hold thatabsence of motive to exonerate the accused.

10.6. The learned counsel has submitted that in view of appellant’sadmission under Section 313 CrPC about his arrest, the contention thatthe arrest of the appellant after the incident is questionable, has nofoundation to stand upon. The learned counsel has further refuted thecontention that the place of occurrence is not proved. In this regard, ithas been argued that PW-7 has clearly deposed that after receivingFIR, he prepared the inquest report at the police station itself, whichwas witnessed by four persons and thereafter, he visited the place ofoccurrence, examined witnesses and drew up the site plan (Ex. 3) ofplace of occurrence and signed thereon. PW-7 also deposed that he didnot find the appellant at the place of occurrence and could be arrestedonly from Nidanpur market on 24.10.2010. The learned counsel hasfurther submitted that the site map, at point ‘Ka’, clearly indicates theplace of occurrence to be the house of the appellant. Although an objectionof the site plan not accompanying the charge-sheet has been taken bythe defence, but it is seen that the same is duly exhibited in evidence andis the part of original record before the Courts. Moreover, the InvestigatingOfficer categorically described the place of occurrence in his cross-examination. Therefore, according to the learned counsel, objection toEx. 3 was rightly rejected by the Trial Court while finding that the appellantand the deceased resided in the same house together and the death ofdeceased occurred inside the house.

10.7. While concluding, learned counsel for the respondent-Statehas submitted that the present case is of clinching evidence, which hasduly been considered by the two Courts, while recording concurrentfindings as regards the guilt of the appellant, in committing the murder ofhis deceased wife and hence, no interference is called for.

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AThe scope and width of these appeals11. As noticed, the Trial Court and the High Court have concurrentlyrecorded the findings in this case that the prosecution has been able tosuccessfully establish the chain of circumstances leading to the onlyconclusion that the appellant is guilty of the offence of murder of hisBwife. The concurrent findings leading to the appellant’s conviction havebeen challenged in this appeal as if inviting re-appreciation of entireevidence on its contents as also its surrounding factors. Though theparameters of examining the matters in an appeal by special leave underArticle 136 of the Constitution of India have been laid down repeatedlyby this Court in several of the decisions but, having regard to theCsubmissions made in this case, we usefully reiterate the observations inthe case of Pappu v. The State of Uttar Pradesh: 2022 SCC OnLineSC 176 wherein, after referring to Articles 134 and 136 of the Constitutionof India and Section 2 of the Supreme Court (Enlargement of CriminalAppellate Jurisdiction) Act, 1970 as also with a detailed reference to theDrelevant decisions, this Court has summed up the subtle distinction in thescope of a regular appeal and an appeal by special leave in the followingwords: -

“20.…. In such an appeal by special leave, where the Trial Courtand the High Court have concurrently returned the findings offact after appreciation of evidence, each and every finding ofEfact cannot be contested nor such an appeal could be dealt withas if another forum for reappreciation of evidence. Of course, ifthe assessment by the Trial Court and the High Court could besaid to be vitiated by any error of law or procedure or misreadingof evidence or in disregard to the norms of judicial process leadingFto serious prejudice or injustice, this Court may, and in appropriatecases would, interfere in order to prevent grave or seriousmiscarriage of justice but, such a course is adopted only in rareand exceptional cases of manifest illegality. Tersely put, it is not amatter of regular appeal. This Court would not interfere with theconcurrent findings of fact based on pure appreciation of evidenceGnor it is the scope of these appeals that this Court would enter intoreappreciation of evidence so as to take a view different than thattaken by the Trial Court and approved by the High Court.”

11.1. Keeping the principles aforesaid in view, we may examineif the concurrent findings call for any interference in this case whileH

reiterating that wholesome reappreciation of evidence is not within thescope of this appeal, even though we have scanned through the entireevidence in order to appropriately deal with the contentions urged beforeus.

The principles applicable to this case

12. Learned counsel for the appellant has endeavoured to arguethat there had been several shortcomings and lacunae in the prosecutioncase and that the relied upon factors, including the medical evidence andthe so-called falsity of explanation of the appellant, are not providingsuch links in the circumstances which may lead to the finding on the guiltof the appellant. While dealing with such submissions, we may usefullytake note of the basic principles applicable to this case, as noticeablefrom the relevant cited decisions.

12.1. The principles explained and enunciated in the case ofSharad Birdhichand Sarda (supra) remain a guiding light for the Courtsin regard to the proof of a case based on circumstantial evidence. Therein,this Court referred to the celebrated decision in the case of Hanumantv. State of Madhya Pradesh: AIR 1952 SC 343 and deduced fivegolden principles of proving a case based on circumstantial evidence inthe following terms:- “152........................ It may be useful to extract what Mahajan, J.has laid down in Hanumant case:

“It is well to remember that in cases where the evidence is ofa circumstantial nature, the circumstances from which theconclusion of guilt is to be drawn should in the first instance befully established, and all the facts so established should beconsistent only with the hypothesis of the guilt of the accused.Again, the circumstances should be of a conclusive nature andtendency and they should be such as to exclude everyhypothesis but the one proposed to be proved. In other words,there must be a chain of evidence so far complete as not toleave any reasonable ground for a conclusion consistent withthe innocence of the accused and it must be such as to showthat within all human probability the act must have been done by the accused.”

153. A close analysis of this decision would show that the followingconditions must be fulfilled before a case against an accusedcan be said to be fully established:

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(1) the circumstances from which the conclusion of guilt isto be drawn should be fully established.

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It may be noted here that this Court indicated that thecircumstances concerned “must or should” and not “may be”established. There is not only a grammatical but a legal distinctionBbetween “may be proved” and “must be or should be proved” aswas held by this Court in Shivaji Sahabrao Bobade v. State ofMaharashtra[7]where the observations were made:

“Certainly, it is a primary principle that the accused must beand not merely may be guilty before a court can convict andthe mental distance between ‘may be’ and ‘must be’ is longand divides vague conjectures from sure conclusions.”

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(2) the facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that the accusedis guilty, D

(3) the circumstances should be of a conclusive nature andtendency,

(4) they should exclude every possible hypothesis except the oneto be proved, and E

(5) there must be a chain of evidence so complete as not to leaveany reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all humanprobability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitutethe panchsheel of the proof of a case based on circumstantialevidence.

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155. It may be interesting to note that as regards the mode ofproof in a criminal case depending on circumstantial evidence, inthe absence of a corpus delicti, the statement of law as to proofGof the same was laid down by Gresson, J. (and concurred by 3more Judges) in King v. Horry [1952 NZLR 111] thus:

“Before he can be convicted, the fact of death should be provedby such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: thecircumstantial evidence should be so cogent and compelling asto convince a jury that upon no rational hypothesis other thanmurder can the facts be accounted for.”

156. Lord Goddard slightly modified the expression “morallycertain” by “such circumstances as render the commission of thecrime certain”.

157. This indicates the cardinal principle of criminal jurisprudencethat a case can be said to be proved only when there is certainand explicit evidence and no person can be convicted on puremoral conviction...””

12.1.1. It is also pertinent and useful to notice that in the said caseof Sharad Birdhichand Sarda, this Court also enunciated the principlesfor using the false explanation or false defence as an additional link tocomplete the chain of circumstances in the following terms: - “158. It may be necessary here to notice a very forceful argumentsubmitted by the Additional Solicitor General relying on a decisionof this Court in Deonandan Mishra v. State of Bihar[8] tosupplement his argument that if the defence case is false it wouldconstitute an additional link so as to fortify the prosecutioncase……..

159. It will be seen that this Court while taking into account theabsence of explanation or a false explanation did hold that it willamount to be an additional link to complete the chain but theseobservations must be read in the light of what this Court saidearlier viz. before a false explanation can be used as additionallink, the following essential conditions must be satisfied:

(1) various links in the chain of evidence led by the prosecutionhave been satisfactorily proved,

(2) the said circumstance points to the guilt of the accusedwith reasonable definiteness, and

(3) the circumstance is in proximity to the time and situation.160. If these conditions are fulfilled only then a court can use afalse explanation or a false defence as an additional link to lendan assurance to the court and not otherwise.……..”

8 AIR 1955 SC 801 : (1955) 2 SCR 570, 582 : 1955 Cri LJ 1647.

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A12.2. In the case of Balaji Gunthu Dhule (supra), where theHigh Court did not accept the evidence of the alleged eye-witnesses butproceeded to principally rely on the post-mortem report while recordingconviction, this Court did not approve such an approach, while observingin the referred paragraph as under: - B“9. The High Court has also relied upon the post-mortem reportof the doctor. In our opinion, since the entire evidence of theeyewitnesses has not been accepted by the High Court, it couldnot have merely relied upon the post-mortem report to convict theappellant for an offence under Section 302 IPC…….”

C12.3. In the case of Gargi (supra), where the appellant was heldguilty of murder of her husband by the two Courts essentially withreference to the operation of Section 106 of the Evidence Act, this Courtpointed out that this provision does not absolve the prosecution of itsprimary burden in the following words: - D“33.1. Insofar as the “last seen theory” is concerned, there is nodoubt that the appellant being none other than the wife of thedeceased and staying under the same roof, was the last personthe deceased was seen with. However, such companionship ofthe deceased and the appellant, by itself, does not mean that apresumption of guilt of the appellant is to be drawn. The trialEcourt and the High Court have proceeded on the assumption thatSection 106 of the Evidence Act directly operates against theappellant. In our view, such an approach has also not been freefrom error where it was omitted to be considered that Section106 of the Evidence Act does not absolve the prosecution of itsFprimary burden…”

12.4. In the case of Shivaji Chintappa Patil (supra), this Courtreiterated the principles that Section 106 of the Evidence Act does notabsolve the prosecution of discharging the primary burden; and that wantof explanation or falsity of explanation in the statement under SectionG313 can only be used as an additional circumstance when the prosecutionhas proved the other circumstances leading to no other conclusion butthat of guilt of the accused. In that case, one of the significant featureshad been that as per the post-mortem report, the cause of death of thevictim was asphyxia due to hanging but, admittedly, there were no markson the body of the victim which could suggest violence or struggle; and H

the medical expert himself had not ruled out the possibility of suicidaldeath. This Court observed and said as under: - “22. …Section 106 of the Evidence Act does not absolve theprosecution of discharging its primary burden of proving theprosecution case beyond reasonable doubt. It is only when theprosecution has led evidence which, if believed, will sustain aconviction, or which makes out a prima facie case, that the questionarises of considering facts of which the burden of proof would lieupon the accused.

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24. Another circumstance relied upon by the prosecution is, thatthe appellant failed to give any explanation in his statement underSection 313 Cr.P.C. By now it is well-settled principle of law, thatfalse explanation or non-explanation can only be used as anadditional circumstance, when the prosecution has proved the chainof circumstances leading to no other conclusion than the guilt ofthe accused. However, it cannot be used as a link to complete thechain. Reference in this respect could be made to the judgment ofthis Court in Sharad Birdhichand Sarda (supra).”

12.5. In Satye Singh (supra), where the prosecution failed toprove the basic facts as against the accused, this Court, again, emphasisedthat Section 106 of the Evidence Act does not relieve the prosecution ofits primary duty to prove the guilt of the appellant as follows: - “15. …the Court is of the opinion that the prosecution had miserablyfailed to prove the entire chain of circumstances which wouldunerringly conclude that alleged act was committed by the accusedonly and none else. Reliance placed by learned advocate Mr. Mishrafor the State on Section 106 of the Evidence Act is also misplaced,inasmuch as Section 106 is not intended to relieve the prosecutionfrom discharging its duty to prove the guilt of the accused….”

12.6. In the case of Nagendra Sah (supra), the relevantbackground aspects were that the appellant’s wife died due to burn injurieson 18.11.2011 whereupon, Unnatural Death Case was registered.According to the post-mortem report, the cause of death was asphyxiadue to pressure around neck by hand and blunt substance. Later, as lateas on 25.08.2012, the FIR was registered for the offence under Section302 IPC and ultimately, the appellant was tried and convicted of the A

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Aoffences under Sections 302 and 201 IPC. This Court, however, noticedthe factors that there was no explanation by the prosecution for theinordinate delay in registering the FIR; that none except the officialwitnesses supported the prosecution case; that there was no evidenceto suggest that the relationship between the appellant and the deceasedwas strained in any manner; and that the appellant was not the onlyBperson residing in the house where the incident took place. This Court,thus, held that the facts established were not consistent with only onehypothesis of the guilt of the appellant. In such a background, this Courtobserved that conviction could not have been based only on the post-mortem report; and when the prosecution failed to establish the chain ofCcircumstances, the failure of the accused to discharge the burden ofSection 106 of the Evidence Act was not relevant at all. This Court andobserved and held as under: - “22. Thus, Section 106 of the Evidence Act will apply to thosecases where the prosecution has succeeded in establishing theDfacts from which a reasonable inference can be drawn regardingthe existence of certain other facts which are within the specialknowledge of the accused. When the accused fails to offer properexplanation about the existence of said other facts, the court canalways draw an appropriate inference.

E23. When a case is resting on circumstantial evidence, if theaccused fails to offer a reasonable explanation in discharge ofburden placed on him by virtue of Section 106 of the EvidenceAct, such a failure may provide an additional link to the chain ofcircumstances. In a case governed by circumstantial evidence, ifthe chain of circumstances which is required to be established byFthe prosecution is not established, the failure of the accused todischarge the burden under Section 106 of the Evidence Act isnot relevant at all. When the chain is not complete, falsity of thedefence is no ground to convict the accused.

24. As we have already held in this case, the circumstancesGestablished by the prosecution do not lead to only one possibleinference regarding the guilt of the appellant-accused.

25. Therefore, what survives for consideration is only an opinionof the medical practitioner who conducted autopsy and gave areport on the cause of death. As held in Balaji Gunthu Dhule[9], H9 (2012) 11 SCC 685 (as referred to hereinbefore).

only on the basis of post-mortem report, the appellant could nothave been convicted of the offence punishable under Section 302IPC and consequently for the offence punishable under Section201 IPC.

26. Moreover, there is no explanation brought on record by theprosecution for the delay in registering first information report.Though the post-mortem report was available on 18-11-2011, firstinformation report was belatedly registered on 25-8-2012.

27. Therefore, we are of the considered view that the guilt of theaccused has not been established beyond a reasonable doubt….”

12.7. The case of Trimukh Maroti Kirkan (supra) as relied uponby the High Court and referred to by learned counsel for the respondentcarry at least one significant feature akin to the present case. Therein,the accused was charged of the murder of his wife; there had beenallegations of ill-treatment of the deceased-wife by the accused-husband;and though the victim had been killed by strangulation, the informationgiven to her parents was that she had died on account of snakebite andall in the village were also told that the deceased had died on account ofsnakebite. After taking note of the facts of the case, this Court expositedon the principles governing the assessment of circumstantial evidence,the operation of Section 106 of the Evidence Act, and the effect of wantof necessary explanation or giving of false explanation by the accused,inter alia, in the following passages: - “12. In the case in hand there is no eyewitness of the occurrenceand the case of the prosecution rests on circumstantial evidence.The normal principle in a case based on circumstantial evidenceis that the circumstances from which an inference of guilt is soughtto be drawn must be cogently and firmly established; that thosecircumstances should be of a definite tendency unerringly pointingtowards the guilt of the accused; that the circumstances takencumulatively should form a chain so complete that there is noescape from the conclusion that within all human probability thecrime was committed by the accused and they should be incapableof explanation on any hypothesis other than that of the guilt of theaccused and inconsistent with their innocence.

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A14. If an offence takes place inside the privacy of a house and insuch circumstances where the assailants have all the opportunityto plan and commit the offence at the time and in circumstancesof their choice, it will be extremely difficult for the prosecution tolead evidence to establish the guilt of the accused if the strictprinciple of circumstantial evidence, as noticed above, is insistedBupon by the courts. A judge does not preside over a criminal trialmerely to see that no innocent man is punished. A judge alsopresides to see that a guilty man does not escape. Both are publicduties. (See Stirland v. Director of Public Prosecutions[10] —quoted with approval by Arijit Pasayat, J. in State ofCPunjab v. Karnail Singh[11].) The law does not enjoin a duty onthe prosecution to lead evidence of such character which is almostimpossible to be led or at any rate extremely difficult to be led.The duty on the prosecution is to lead such evidence which it iscapable of leading, having regard to the facts and circumstancesof the case. Here it is necessary to keep in mind Section 106 ofDthe Evidence Act which says that when any fact is especiallywithin the knowledge of any person, the burden of proving thatfact is upon him…….

15. Where an offence like murder is committed in secrecy insidea house, the initial burden to establish the case would undoubtedlybe upon the prosecution, but the nature and amount of evidenceto be led by it to establish the charge cannot be of the same degreeas is required in other cases of circumstantial evidence. Theburden would be of a comparatively lighter character. In view ofSection 106 of the Evidence Act there will be a correspondingburden on the inmates of the house to give a cogent explanationas to how the crime was committed. The inmates of the housecannot get away by simply keeping quiet and offering noexplanation on the supposed premise that the burden to establishits case lies entirely upon the prosecution and there is no duty atall on an accused to offer any explanation.

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21. In a case based on circumstantial evidence where noeyewitness account is available, there is another principle of law 10 1944 AC 315: (1944) 2 All ER 13 (HL).H11 (2003) 11 SCC 271 : 2004 SCC (Cri) 135.

which must be kept in mind. The principle is that when anincriminating circumstance is put to the accused and the saidaccused either offers no explanation or offers an explanation whichis found to be untrue, then the same becomes an additional link inthe chain of circumstances to make it complete. This view hasbeen taken in a catena of decisions of this Court.”

12.8. The case of Sudru (supra) had been the one where theappellant was charged of the murder of his son in his house; and theprincipal prosecution witnesses, including wife of the appellant, turnedhostile to the prosecution but, the facts did come out of their testimonythat the deceased was left alone in the company of the appellant and thenext day, the deceased was found dead. Taking note of the salient featuresof the case and operation of the requirements of Section 106 of theEvidence Act, this Court observed, as regards consideration of the relevantpart of evidence of a hostile witness and the effect of failure on the partof the accused to discharge his burden, as follows: - “6. No doubt, in the present case all the witnesses who are relatedto the accused and the deceased have turned hostile. PW 1 JankiBai, wife of the appellant and the mother of the deceased hasalso turned hostile. However, by now it is settled principle of law,that such part of the evidence of a hostile witness which is foundto be credible could be taken into consideration and it is notnecessary to discard the entire evidence...

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“8. In this view of the matter, after the prosecution has establishedthe aforesaid fact, the burden would shift upon the appellant underSection 106 of the Evidence Act. Once the prosecution proves,that it is the deceased and the appellant, who were alone in thatroom and on the next day morning the dead body of the deceasedwas found, the onus shifts on the appellant to explain, as to whathas happened in that night and as to how the death of the deceasedhas occurred.

“9. In this respect reference can be made to the followingobservation of this Court in Trimukh Maroti Kirkan v. State ofMaharashtra[12]:

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A“21. In a case based on circumstantial evidence where noeyewitness account is available, there is another principle oflaw which must be kept in mind. The principle is that when anincriminating circumstance is put to the accused and the saidaccused either offers no explanation or offers an explanationwhich is found to be untrue, then the same becomes an additionalBlink in the chain of circumstances to make it complete.”

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12.9. Apart from the above, we may also usefully take note ofthe recent decision of this Court in the case of Sabitri Samantaray v.State of Odisha: 2022 SCC OnLine SC 673. In that case based oncircumstantial evidence, with reference to Section 106 of the EvidenceCAct, a 3-judge bench of this Court noted that if the accused had a differentintention, the facts are specially within his knowledge which he mustprove; and if, in a case based on circumstantial evidence, the accusedevades response to an incriminating question or offers a response whichis not true, such a response, in itself, would become an additional link inDthe chain of events. The relevant part of the enunciation by this Courtreads as under: - “19. Thus, although Section 106 is in no way aimed at relievingthe prosecution from its burden to establish the guilt of an accused,it applies to cases where chain of events has been successfullyEestablished by the prosecution, from which a reasonable inferenceis made out against the accused. Moreover, in a case based oncircumstantial evidence, whenever an incriminating question isposed to the accused and he or she either evades response, oroffers a response which is not true, then such a response in itselfbecomes an additional link in the chain of events.”F

12.10. As regards the relevancy of motive in a case based oncircumstantial evidence, the weight of authorities is on principles that ifmotive is proved, that would supply another link in the chain ofcircumstantial evidence but, the absence of motive cannot be a groundto reject the prosecution case, though such an absence of motive is aGfactor that weighs in favour of the accused. In the cases of NanduSingh and Shivaji Chintappa Patil (supra), reliance has essentiallybeen placed on the decision in Anwar Ali (supra), wherein this Courthas referred to and relied upon the principles enunciated in previousdecisions and has laid down as under: - H

“24. Now so far as the submission on behalf of the accused thatin the present case the prosecution has failed to establish andprove the motive and therefore the accused deserves acquittal isconcerned, it is true that the absence of proving the motive cannotbe a ground to reject the prosecution case. It is also true and asheld by this Court in Suresh Chandra Bahri v. State of Bihar[13]that if motive is proved that would supply a link in the chain ofcircumstantial evidence but the absence thereof cannot be aground to reject the prosecution case. However, at the same time,as observed by this Court in Babu[14], absence of motive in a casedepending on circumstantial evidence is a factor that weighs infavour of the accused. In paras 25 and 26, it is observed and heldas under:- “25. In State of U.P. v. Kishanpal[15], this Court examinedthe importance of motive in cases of circumstantial evidence andobserved:

‘38. … the motive is a thing which is primarily known tothe accused themselves and it is not possible for the prosecutionto explain what actually promoted or excited them to committhe particular crime.

39. The motive may be considered as a circumstancewhich is relevant for assessing the evidence but if the evidenceis clear and unambiguous and the circumstances prove the guiltof the accused, the same is not weakened even if the motive isnot a very strong one……...’

26. This Court has also held that the absence of motive in acase depending on circumstantial evidence is a factor that weighsin favour of the accused. (Vide Pannayar v. State of T.N.[16]).”

13. Keeping the aforesaid principles in view, when we examinethe facts of this case and the concurrent findings by the Trial Court andthe High Court, we find no substance in the contentions urged by learnedcounsel for the appellant.

13 1995 Supp (1) SCC 80: 1995 SCC (Cri) 60.

14 (2010) 9 SCC 189: (2010) 3 SCC (Cri) 1179.

15 (2008) 16 SCC 73: (2010) 4 SCC (Cri) 182.

16 (2009) 9 SCC 152 : (2009) 3 SCC (Civ) 638 : (2010) 2 SCC (Cri) 1480.

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AConcurrent findings do not call for interference in this case

14. As noticed, the Trial Court and the High Court haveconcurrently recorded the findings in this case that the prosecution hasbeen able to establish the chain of circumstances leading to the conclusionthat the appellant is guilty of the offence of murder of the victim, hisBwife. The fundamental facts established by the prosecution evidenceare that the dead body of the victim was brought to the police station;and that after registering FIR on the basis of report (Ex. 1) made byPW-1, inquest was carried out and the inquest report (Ex. 2) was drawnat the police station, which was signed by the informant as also by theother witnesses, PW-2, PW-3 and PW-4. The post-mortem report andCthe deposition of PW-8 further make it clear that the victim had diedbecause of asphyxia, which was a result of throttling. The otherundeniable fact has been that the victim was the wife of the appellantand before her death, she was living with the appellant. It has not beenthe case of the appellant or even the private witnesses that anyone elseDwas also living/residing with them. Yet another factor has been that whilehis wife had died an unnatural death, the appellant was not to be foundnearby and could only be apprehended later at a distant place. Thesefacts are either undeniable or are clearly established by the prosecutionevidence. Thus, it cannot be said that the prosecution has not dischargedits primary burden of bringing home cogent circumstances pointingEtowards the guilt of the appellant.

14.1. Then, the other links in the aforementioned chain ofcircumstances could be iterated as follows: - (a) The witness PW-1 Md. Akbar Ali, attempted to suggest theFstory that the victim was suffering from illness and had beenhospitalised but did not deny that he had been to the policestation. He admitted having put his signatures on the ejahar(Ex. 1) which led to the FIR and also on the inquest report(Ex. 2) but attempted to suggest the so-called imbalance ofhis mind, which was only an uncertain pretext.G

(b) The witnesses PW-2 to PW-6 also attempted to suggest thatthe victim was suffering from illness, she was hospitalised,and she died in the hospital but there had been two basicsnags as regards their testimonies: one, that there was nocorroboration in the form of any evidence to show herHhospitalisation, if at all any such event had taken place; and second, that the witnesses PW-3 and PW-4 did not deny theirsignatures on the inquest report (Ex. 2), which was drawn atthe police station. It needs hardly any reiteration that if thevictim had died in the hospital due to illness, neither therewas any occasion to carry her dead body to the police stationnor the dead body would have carried such injuries, whichwere indicative of physical assault nor there was any reasonfor the doctor conducting post-mortem to opine about asphyxiadue to throttling.

(c) The story sought to be suggested by PW-1 to PW-6 aboutthe illness and hospitalisation of the victim had been of blatantfalsehood and the appellant, in his examination under Section313 CrPC, categorically endorsed that story and acceptedthe testimony of PW-1 to PW-6 as correct. There had notbeen any other explanation by the appellant as regards injurieson the person of his wife, who was living with him, and aboutthe cause of her unnatural death with throttling.

(d) The appellant was admittedly not available at his place ofresidence at the relevant time and not even in the village areabut was admittedly away to a different place. Again, theappellant suggested in his examination under Section 313CrPC that he had gone to the other place to procure medicinesfor himself. Neither his nature of illness was shown nor hewas found carrying any medicine.

15. The factors as noticed hereinabove may not be decisive ofthe matter when taken singularly but, when the entire chain ofcircumstances, established by way of undeniable facts and the provenfacts are juxtaposed with these factors; and all the relevant factors arejoined together, the present one turns out to be a case where the burdenenvisaged by Section 106 of the Evidence Act operates heavily againstthe appellant.

16. The victim was none other than the wife of the appellant andwas living with him. Thus, the basic fact as to when did he part with thecompany of his wife was within the knowledge of the appellant alone.He explained nothing in that regard. Secondly, when the appellant’s wifewas found killed with the dead body carrying several injuries and thecause of death having been asphyxia due to throttling, the appellant was A

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Arequired to explain such injuries, which the deceased sustained whileliving with him in the same dwelling house. Again, there had not beenany explanation from the appellant. Thirdly, if his wife, who was residingwith him, had been so ill as to be taken to hospital, the facts in thatregard were also especially within the knowledge of the appellant andhe was required to explain the nature of ailment as also the mode andBmanner by which she was admitted to the hospital. As noticed, there isno explanation on these aspects from the appellant; rather the narrativecooked up by the witnesses and picked up by the appellant about thealleged ailment and hospitalisation of the deceased is found to be of utterfalsehood. Fourthly, if his wife had died and still he had gone to someCother place, the reason for doing so was also especially within theknowledge of the appellant alone. The reason as assigned by the appellant(about his own illness) is also found to be far away from truth.

17. Fact of the matter remains that all the aforesaid facts andfactors, which ought to be in the knowledge of the appellant, are eitherDnot clarified or the explanation given by the appellant turns out to befalse. Hence, in the given set of facts and circumstances, the legalconsequence is that such omission coupled with such falsehood indeedprovide additional links in the chain of circumstances.

18. Thus, the sum and substance of the matter is that the falsehoodEcooked up by the witnesses (regarding illness and hospitalisation of thevictim) and readily accepted by the appellant coupled with theundischarged burden of Section 106 of the Evidence Act provide suchstrong links in this matter that the chain of circumstances is complete,leading to the conclusion on the guilt of the appellant beyond any doubt.F19. The other submissions, as regards the doubts on site plan (Ex.3) or on the date of arrest of the appellant or about the place from wherethe dead body was carried to the police station, have only been noted tobe rejected. The IO, PW-7, has categorically established that he haddrawn the plan (Ex. 3) at the site and the same could not have beenremoved out of consideration merely because of the curable fault that itGwas not annexed with the charge-sheet. The date of arrest also loses itsrelevance because the material fact remains undeniable that the appellantwas not found at the place and the area of his dwelling house and hadadmittedly gone to Nidanpur, as stated by himself in his statement underSection 313 CrPC. In our view, the place from where the dead bodyHwas picked up to be carried to the police station, has hardly any bearing MD. ANOWAR HUSSAIN v. STATE OF ASSAM[DINESH MAHESHWARI, J.]

in the present case because the only other place suggested by theappellant in league with the witnesses PW-1 to PW-6 had been the hospitalwhere the victim was allegedly admitted. Such a suggestion has beenfound to be false to the core. In any case, the dead body was indeedcarried to the police station and the IO made the inquest report (Ex. 2)at the police station itself.

20. Taking all the aforesaid facts and circumstances together, it isnot a case where the motive could have played any decisive role nor ithad been a case where two views were possible. Equally, the presentcase had not been of conviction on suspicion alone. Therefore, the otherdecisions cited by learned counsel for the appellant do not call for muchdilation in the present case.

21. For what has been discussed hereinabove, this appeal failsand is, therefore, dismissed.

Divya Pandey and Anurag Bhaskar(Assisted by : Priyanshu Agarwal, LCRA)

Appeal dismissed.

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