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Judgment
Judge, Budaun in Sessions Trial No.1124 of 2010 by which the appellants were convicted under sections sections 498-A, 302/149 IPC and under section 4 of Dowry Prohibition Act and sentenced for three years' rigorous imprisonment with a fine of Rs.2000/- each under section 498-A IPC; for life under section 302/149 IPC with a fine of Rs.5,000/-each and for four years rigorous imprisonment with a fine of Rs.2000/-each. In addition, in the event of default in payment of fine under sections 498-A, 302/149 IPC and section 4 of Dowry Prohibition Act, each of them had to undergo imprisonments of two months'; one year and one month respectively.
Upon the death of one Sadhna, who was the wife of the accused appellant Arun Kumar in Criminal Appeal No.5918 of 2015, a First Information Report was lodged by the PW-1-Suresh Kumar with the allegation that the first informant had married off his daughter Sadhna around six years prior to the date when the FIR was being lodged. Thereafter she had had two sons. The accused Arun Kumar and his mother Smt. Shrivati Devi, his sister-in-law (bhabhi) Poonam @ Lado wife of Arvind Kumar; Arvind Kumar and Satendra Kumar, the elder brothers of the accused appellant Arun Kumar quite often used to demand dowry and used to torture the deceased. The first informant had further stated that he had tried to make the appellants understand that it was not possible for him to give any further dowry but they continued to insist on their demand for a four-wheeler vehicle as dowry from the first informant. It was still further stated that when the dowry was refused by the first informant then a panchayat was also held but the accused did not agree to the decision of the panchayat also. It was also stated that in the morning of 2.8.2010, the first informant got an information that his daughter, aged about 26 years, had been killed by her husband and other accused persons on account of their demand of dowry not being fulfilled. When the first informant reached the house of the deceased at village Asafpur, then he saw that the deceased was lying dead in her bed and the family members had all disappeared.
Upon lodging of the FIR, the police got into action and tried to make certain recoveries. The invitation card of the couple i.e. of Arun Kumar and Sadhna of their marriage and Tilak ceremony was recovered and it had a date of 21.12.2008 on it. This was exhibited as Exhibit Ka-3. Thereafter a panchayatnama was held on 2.8.2010 which started at 17.45 PM and concluded at 19.00 PM on the same date. Thereafter the dead body was sent for post mortem and it mentioned two injuries namely - 1. Abraded contusions 10 cm x 5 cm on (R) side forehead and (R) eye, and
Ligature mark 16 cm. X 2 cm lower part of neck Face and upper part of chest severely congested underneath bone hyoid fractured. The cause of death was asphyxia and anti-mortem strangulation. Upon the conclusion of the investigation, the police report was sent to the Court and on 1.3.2011 charge was framed under sections 498-A, 302 of Indian Penal Code and section 3/4 of Dowry Prohibition Act only against the appellant-Arun Kumar in Appeal No.5918 of 2015. The police had exonerated the accused Shrivati Devi, Poonam @ Lado, Arvind Kumar and Satendra Kumar. However, when the PW-1 had continued with his testimony before the Court which had begun on 31.3.2011 and the PW-2 had testified before the Court since 7.7.2011, the Court finding that the exonerated persons were guilty, summoned the accused Shrivati Devi, Poonam @ Lado, Arvind Kumar and Satendra Kumar under section 319 of Code of Criminal Procedure and on 7.1.2012 an additional charge was framed vis.-a-vis. Arun Kumar under section 304-B of IPC. On 7.11.2012, charges were also framed against Shrivati Devi, Poonam @ Lado, Arvind Kumar and Satendra Kumar under sections 498-A, 304B and 302/149 IPC and under section 3/4 of the Dowry Prohibition Act. Thereafter the testimony of PW-1 and PW-2 also continued after the appellants Shrivati Devi, Poonam, Arvind Kumar and Satendra Kumar were summoned.
The PW-1 Sarvesh Kumar, who was the father of the deceased, in his testimony had stated that around six years prior to the date of the incident, he had got his daughter married with Arun Kumar but subsequently the accused Satendra Kumar and the family members started demanding a car in dowry and for that reason they used to torture his daughter. This fact was narrated by the deceased to the PW-1. He further stated that despite all efforts on the part of the PW-1, the accused did not relent and they kept demanding the dowry. He had stated that the deceased daughter had two sons. On 2.8.2010 at around 10.11 AM, he got information that his daughter had been killed by Arun Kumar, the husband; Shrivati Devi (mother-in-law); Poonam @ Lado (sister-in-law) and the elder brothers of the husband namely Arvind Kumar and Satendra Kumar. Upon getting this information, he had testified before the Court, that he immediately reached the house of the deceased and there he found that all the family members had disappeared and his daughter was lying dead. He had further testified that there were injury marks on the throat. Upon discovering all this, PW-1 had stated that he had got the FIR lodged and the scribe was one Harish Kumar Gupta. He categorically, in his statement-in-chief, had stated that at the time of death, all the family members i.e. all the accused persons were staying together in one house as a joint family. In the cross-examination, he had stated that the accused Arun Kumar had got the job as a teacher under the dying-in-harness rules after the death of his father. When the daughter had got married, the elder brothers of accused Arun Kumar, namely; Arvind Kumar and Satendra Kumar had already got married. He had stated that he had not got any invitation card printed and it was the boy’s side who had got the cards printed. Upon questions being asked, he reiterated that the entire family was staying in the same house. He had stated that after the marriage of his daughter, he had gone to his daughter's house only two or three times. He then stated, upon a question being asked as to in whose name the plot in village Bisauli was purchased, then he had answered that it was purchased in the name of his daughter and the price of the plot was was paid by him. The son-in-law had got another adjoining plot of 20 sq. yard purchased and for that he (Arun Kumar) had paid the money. About his job, the PW-1 had stated that he was doing the job of recovery etc. in a Cooperative Department and that while he was working, he was not suspended. About the scribe, he had told that he was the person whom he had met outside the police station and that he had helped him out in getting the FIR scribed. He had then stated that he had gone to the matrimonial house of his daughter at Asafpur, which was 10-12 kilometers away from his house, on Tonga. Upon being asked as to who had informed him about the death, he had stated that there was a village Nagwa which was in the neighbourhood of village Asafpur and from there, Annu, a young boy, had come to him and had informed him about the death in the morning at around 10.00 AM. Upon further being questioned, he had stated that Annu was the son of his mamera bhai (cousin). He then had stated that he had got his daughter married with Arun in the year 2004-05. He also stated that the marriage was fixed in the 2002 but actually it was solemnized in the year 2004-05. He had emphatically denied that the marriage had taken place in the year 2002. Upon him being shown the marriage invitation card which was for the marriage which was to be held on 21.2.2002, he had stated that the card was got printed by the boy’s side and it was upon them to get the cards printed in the manner they wanted. He was also confronted with a sale deed by which some property was purchased in the name of his deceased daughter Sadhna on 3.5.2002 and in it the daughter was described as being the wife of Arun Kumar. He denied the fact that he had knowledge that the elder son of the deceased was born on 20.12.2002. Upon being told that the daughter was staying on rent earlier in the house of Ashok Kumar Sharma, he had stated that he had no knowledge as to whether she was staying separately in the house of Ashok Kumar Sharma. He also did not know that shortly after marriage, the couple had shifted to the house of Chandrakesh Sharma on rent. He had further stated that while the couple was staying in village Mudiya, Arun Kumar had purchased a plot in Asampur for constructing a separate house. He also did not know that the property was purchased from one Anil Kumar, the son of Pandit Triveni Sahai and that he had got a separate house built therein. He had, however, confessed that in the new house which was constructed by the couple, the dead body was found. Then, he had stated that on the fateful day, he had come to the place of incident on the motorcycle of Annu and then the rest of the family had come on Tonga. Then, he had stated that along with him, his wife had also come on the motorcycle.
PW-2 Smt. Rajani, was the mother of the deceased. She had also stated the fact that the deceased had got married with Arun Kumar around six years prior to the date of incident. In the cross-examination, she had stated that it was the boy's side who had got the invitation cards printed and that after one and half years of marriage, the first son was born. She had also confirmed the fact that she and her husband had been informed about the death on 2.8.2010 at 10.00 AM and that she had come on the motorcycle of Annu to the matrimonial house of the deceased-daughter. She had very categorically, upon questions being asked, stated that earlier Arun and Sadhna were staying in Asafpur separately, then they were staying in Mudiya where she had not visited them. She had also stated that she had also not attended the grih-pravesh ceremony of the new house of Arun where her daughter died. She had stated that she was very well in the know of the fact that the deceased daughter and Arun Kumar were staying separately in the new house.
PW-3 Narendra Kumar Pathak was a neighbour and he had stated that on 2.8.2010 there had been no fighting between the couple. He had denied the entire story as was put forth by the prosecution. However, he was declared hostile. Thereafter in his cross-examination, he stood firm with what he had stated in his examination-in-chief.
PW-4 was Satish Chandra Parashari before whom it was alleged that accused Arun Kumar had made an extra-judicial confession but he denied this fact and he was subsequently declared hostile. In his cross-examination he stood firm with what he had stated in his examination-in-chief.
PW-5 was the investigating officer Sri Chandra Sen Gupta and he had stated the manner in which he had conducted the investigation.
PW-6 was the Head Constable Surendra Kumar Sagar who had proven the chik.
PW-7 was Dr. J.P. Bhardwaj who had conducted the post mortem. After having proven the post mortem report, he was cross-examined and he had stated that there was no other injury other than the injury mentioned in the post mortem report. He had stated that he had categorically given in the post mortem report that the hyoid bone was broken and that there was no sign of resistance in the form of any injury on the dead body. Upon being suggested that there could have been a hanging, he had stated that only if the loop was there throughout in the neck then only there could have been a hanging but there would have been ligature mark all around the neck.
PW-8 was Yogeshwar Sharma, the Tehsildar who was present at the time of the panchayatnama.
Thereafter statements of the accused were got recorded under section 313 Cr.P.C.
From the side of the defence, as many as 10 witnesses were produced.
DW-1 Chandresh Pathak had proven the fact that the couple Arun Kumar and Sadhna were staying separately from the main family.
DW-2 Chetan Kumar had testified that the appellant Arun Kumar was staying separately from the rest of his family. It was stated by him that at the time when the incident was alleged to have taken place, the appellant Arun Kumar was in the school and in fact he was informed by him through his telephone.
DW-3 Brahmdev Sharma again had testified that the couple was staying separately from the other accused persons.
DW-4 Shuvam Gupta was the milkman and he had also testified that there was harmony in the family and that Arun Kumar had reached the place of the incident only 20 minutes before he had reached.
DW-5 Smt. Rajni was an LIC Agent and she had stated that out of pure love and affection, a life insurance policy was purchased by Arun Kumar for his wife.
DW-6 was Avnesh Kumar. He had stated about some certificate which he had issued on the school pad to the son of the accused Arun Kumar.
DW-7 Satya Prakash Shrama was the landlord of the accused Arun Kumar from 2007 to 2009. He had stated that the son of Arun Kumar was studying in RCGL Memorial School and there Sadhna was also teaching. He had stated that there was absolutely no tension in the family. He had also stated that even the in-laws i.e. PW-1 and PW-2 used to come to the house of Arun Kumar in a very congenial atmosphere. He further stated that Arun Kumar used to go to the school in the morning at 7.00 AM in the summers and in the winters, he used to go around 10.00 AM.
DW-8 Kumari Pratishtha was the daughter of the accused Arvind Kumar. She had also stated that Arun Kumar was not there at home and had come upon getting information.
DW-9 Jugul Kishore Sharma had also testified with regard to the separate living of the couple.
DW-10 Smt. Farhanaz had also stated that Arun Kumar was not at home. She had brought with her the attendance register and the log book of the Primary School, Uchaiti where the accused Arun Kumar was teaching and she had tried to prove that Arun Kumar was being trained at the relevant point of time. She had very categorically stated that she was the teacher in the College where Arun Kumar was being trained to become the Principal.
Thereupon when the judgment dated 23.12.2013 was pronounced and all the accused persons were convicted and sentenced under section 498-A, 302/149 IPC and section 4 of the Dowry Prohibition Act, the instant appeals were filed.
During the pendency of the appeal, we found that Smt. Shrivati Devi had died. The appeal being Criminal Appeal No.277 of 2014, therefore, abates vis.-a-vis. appellant No.1-Shrivati Devi.
Learned counsel for the appellants has, before the Court, made, in essence, three submissions :-i. When there was a separate living of the appellant-Arun Kumar from the rest of the family which included Shrivati Devi, Poonam @ Lado, Arvind Kumar and Satendra Kumar then definitely the family members i.e. the accused Shrivati Devi, Poonam @ Lado, Arvind Kumar and Satendra Kumar could not be involved in the case. He had taken the Court through the statements of PW-1 and PW-2 and from it he had tried to establish that from the very beginning Arun Kumar had separated from his main family and was living separately. The relevant portion of the statement of PW-1 is being reproduced here as under :-
"मु झेयह जा नका री नह ह किका सा धन अपन बच् चोंव पकि का सा थ किकान सा ल ग्रा मु मुड़ि य घुरी का प! ड़ि" अशो$का का मुरी शोमु %का मुका न मुकिकारी य परी रीह थ । मुझेयह भी जा नका री नह ह किका किवव ह का काछ सा मुय ब द इसा का रीण सा किका अरुण अप न भी इ%य का- आ र्थिथ0 का मुदद कारी थ, सा गां!व का ह चों न्द्र का शो शो मु%का मुका न मु मुड़ि य जा न सा पहल, अरुण का सा थ किकारी य परी रीह थ । उसाका ब द सा धन इसा का रीणवशो प्रमु$ द शो मु%प! ड़ि" जा का यह 6 आसा मुपरी मुअरुण व बच् चोंका किकारी य परी रीह ह$। इसाका- जा नका री नह ह। मु झे इसा ब का- जा नका री नह ह किका जाब अरुण व सा धन बच् चोंका सा थ ग्रा मु मु ड़ि य मुरीह सामु य अरुण न आसा मुपरी मुह अल गां मुका न बन न का लिलय प!ड़ि" कि8वन साह य का लका अकिनल कामु री सा प्ल ट खरी द ह$ औरी उसा मुअल गांरीहन का लिलय मुका न बनव य ह$। मुझेयह भी जा नका री नह ह किका जाब उक् मुका न मुरीहन ल यका द$ का मुरी व रीसा$इ% बन गांय थ ब अरुण सा धन का सा थ मुड़ि य सा इसा मुका न मुरीहन आ गांय ह$। जा$ नय मुका न बन य थ उसा मुलका- का- ल शो मिमु ल थ ।"
Similarly, he submitted that PW-2 had also in so many words accepted the fact that the couple was living separately from the rest of the appellants namely Shrivati Devi, Poonam @ Lado, Arvind Kumar and Satendra Kumar.
Learned counsel for the appellants submits that the testimonies of PW-1 and PW-2 could not be called believable and the witnesses would not come within the category of reliable witnesses. He submits that they were absolutely unreliable and submitted that in fact the PW-1 who was a recovery agent in a Cooperative Department, though he could read and write, but the FIR was scribed by one Harish Kumar Gupta. Learned counsel for the appellants further submitted that there were any number of contradictions in the statements of the PW-1. To begin with, he had insisted that the accused were all staying together but subsequently in his cross-examination, he agreed to this fact that the couple i.e. Arun Kumar and Sadhna were staying separately. Also, he in order to bring the case within the ambit of section 304-B IPC, had submitted that the marriage had taken place six years prior to the incident. However, it was found with some certainty that the marriage had taken place on 21.2.2002. This was on account of the fact that some plot was purchased immediately after the marriage with the name of Arun Kumar as the husband of Sadhna. Learned counsel for the appellant also stated that the prosecution witnesses themselves had stated that the first child was around 7 years of age at the time of the incident and he was born about one and half years after the marriage which meant that the marriage had taken place around eight years prior to the date of incident. What is more, learned counsel for the appellants submits that this aspect of the matter that the appellant Arun Kumar and the deceased were married eight years prior to the date of incident, was also believed by the Court below and the case came out from the ambit of section 304B IPC. However, he submits that this kind of evidence which was led by PW-1 and PW-2 to bring the case within the ambit of section 304-B IPC had made the witnesses absolutely unreliable and if they were unreliable then their statements had not to be believed in toto.
What is more, learned counsel for the appellants submits that, to begin with the PW-1 had stated that upon getting the information of death of his daughter, he reached the matrimonial house of his daughter by a Tonga but subsequently he had stated that when Annu had informed him, then he and his wife had gone to her matrimonial home with Annu on his motorcycle. Learned counsel states that a small contradiction would not have mattered much, had it been the only contradiction, but when the PW-1 was trying to forget the date of his daughter's marriage and was trying to bring the case within the ambit of section 304-B IPC by saying that she had got married only six years prior to the date of incident, then contradictions become important and the witnesses become unreliable.
Learned counsel for the appellants submitted that even if the injury on the neck is seen then despite the fact that the hyoid bone was broken, it could not with any certainty be said that the deceased had died due to throttling. There was a possibility that she had hung herself to death and somebody had taken her down and made her rest on the bed.
Learned counsel for the appellants further submitted that definitely if the incident had happened in the house of the appellant Arun Kumar then as per section 106 of the Evidence Act, the burden to explain as to how the incident had happened in the house of the appellant-Arun Kumar would lay on Arun Kumar. However, he submits that the primary duty was of the prosecution to first prove that the appellant was in the house and he submits that nothing could be based on suspicion. To punish a person for murder, it cannot be said that a certain circumstance may be true. He submits that the circumstance had to elevate to the category where it could be said that it "must be true". Learned counsel for the appellants reliying upon a judgment of the Supreme Court in Jose Alias Pappachan vs. Sub-Inspector of Police, Koyilandy & Anr. reported in (2016) 10 SCC 519 submitted that in that case also the wife was allegedly strangulated but it could not, with any certainty, be said that the murder was done by the husband. He, relying upon the judgment, stated that the burden of proving of the fact specially within the knowledge could not be placed on the accused when there was no persuasive evidence to hold that the appellant was present at the relevant time in his house. Not only has the prosecution not been able to bring any evidence of his presence in the house but in fact the defence witnesses namely DW-2 Chetan Kumar, DW-4-Shuvam Gupta, DW-6-Avnesh Kumar and DW-10-Smt. Farhanaz had categorically gone to the extent of saying that the accused Arun Kumar was in his school and was also in fact being trained for the post of Principalship. Learned counsel for the appellant also, for bringing home this point that it was the burden of the prosecution to first prove that the accused was in his house so as to make the burden shift on him for proving something which would specially be within his knowledge, relied upon the judgment of the Supreme Court in the case of Shivaji Chintappa Patil vs. State of Maharashtra reported in (2021) 5 SCC 626. Learned counsel has also relied upon a judgment of this Court in Dr. (Smt.) Nupur Talwar vs.
State of U.P. reported in 2017 (10) ADJ 586. He relied upon paragraph nos.233 to 253 of that judgment and since heavy reliance was placed on those paragraphs, they are being reproduced here as under :-
“233.The last question which arises for our consideration in this appeal is that whether the learned Trial Judge has rightly applied Section 106 of the Indian Evidence Act to the facts and circumstances of the present case while convicting the appellants of the double murder of their daughter Aarushi and their domestic help Hemraj which had taken place in the intervening night of 15th/16th May, 2008 in their flat L-2 Jalvayu Vihar. Before proceeding to examine the aforesaid aspect of the matter in the light of the evidence on record. We are of the considered opinion that it would be useful to first examine the law on the applicability of Section 106 of the Indian Evidence Act.
234.One of the earliest cases in which Section 106 of Evidence Act was examined and explained are Attygalle versus Emperior reported in (1936) 38 Bombay LR 700. Stephen Seneviratne versus King reported in (1937) 39 Bombay LR 1.
"In the aforesaid decisions, Their Lordships of the Privy Counsel dealt with Section 106 of Ordinance No. 14 of 1895 (corresponding to Section 106 of the Indian Evidence Act). It was held that Section 106 of the Evidence Act does not affect the onus of proof and throw upon the accused the burden of establishing innocence."
235.Scope of section 106 of the Indian Evidence Act was examined inconsiderable detail by the Apex Court in the case of Shambhu Nath Mehra versus State of Ajmer reported in AIR 1956 SC 404, wherein learned Judges spelt out the legal principle in paragraph 11 which read as under :
11."This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge."
236.A somewhat similar question was examined by the Apex Court in connection with Section 167 and 178-A of the Sea Customs Act in Collector of Customs, Madras & Ors. v. D. Bhoormull AIR 1974 SC 859 and it will be apt to reproduce paras 30 to 32 of the report which are as under :
"30.It cannot be disputed that in proceedings for imposing penalties under Clause (8) of Section 167, to which Section 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But, in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it - ''all exactness is a fake". El Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered - to use the words of Lord Mansfield in Blatch v. Archer (1774) 1 Cowp. 63 at p.65 "according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.
32.Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he falls to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in 'Law of Evidence', (12th Edn. Article 320, page 291), the "presumption of innocence is, no doubt, presumptio juris; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property", though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice."
237.In Ch. Razik Ram versus Ch. J.S. Chouhan reported in AIR 1975 SC 667 it has been held as under:-
"116.In the first place, it may be remembered that the principle underlying Section 106, Evidence Act which is an exception to the general rule governing burden of proof - applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant-respondent. It cannot apply when the fact is such as to be capable of being known also by persons other than the respondent."
238.In State of West Bengal versus Mir Mohammad Umar reported in 2000 SCC(Cr) 1516 it has been reiterated as under:-
"36.In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows : "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
37.The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn 35 regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference.
38.Vivian Bose, J. had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused."
239.The applicability of Section 106 of the Indian Evidence Act, 1872 has been lucidly explained by the Apex Court in paragraph 23 of its judgement rendered in the case of State of Rajasthan versus Kashi Ram reported in JT 2006 (12) SCC 254 which runs as here under:-
“23.The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution."
240.When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of occurrence, when accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime.
241.The Apex Court in Trimukh Maroti Kirkan versus State of Maharashtra reported in (2007) 10 SCC 445 reiterated as here under :-
"14.If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
"(b)A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."
15.Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
242.P. Mani Vs. State of T.N. 2006 (3) SCC 161 the Apex Court held as here under :
10.We do not agree with the High Court. In a criminal case, it was for the prosecution to prove the involvement of an accused beyond all reasonable doubt. It was not a case where both, husband and wife, were last seen together inside a room. The incident might have taken place in a room but the prosecution itself has brought out evidences to the effect that the children who had been witnessing television were asked to go out by the deceased and then she bolted the room from inside. As they saw smoke coming out from the room, they rushed towards the same and broke open the door. Section 106 of the Evidence Act, to which reference was made by the High Court in the aforementioned situation, cannot be said to have any application whatsoever.
11.The High Court furthermore commented upon the conduct of the Appellant in evading arrest from 4.10.1998 to 21.10.1998. The Investigating Officer did not say so. He did not place any material to show that the Appellant had ben adsconding during the said record. He furthermore did not place any material on records that the Appellant could not be arrested despite attempts having ben made therefore. Why despite the fact, the Appellant who had been shown to be an accused in the First Information Report recorded by himself was not arrested is a matter which was required to be explained by the Investigating Officer. He admittedly visited the place of occurrence and seized certain material objects. The Investigating Officer did not say that he made any attempt to arrest the Appellant or for that matter he had ben evading the same. He also failed and/or neglected to make any statement or bring on record any material to show as to what attempts had been made by him to arrest the Appellant. No evidence furthermore has been brought by the prosecution to show as to since when the Appellant made himself unavailable for arrest and/or absconding.
12.The absence of injury on the person of accused had been found by the High Court to be one of the grounds for believing the prosecution case. All the prosecution witnesses categorically stated that the fire was doused by pouring water. In that situation, no wonder, the Appellant did not suffer any burn injury. It is not the case of the prosecution that in fact any other person had suffered any burn injury in the process of putting out the fire. The incident admittedly took place inside a small room. It had two doors. The prosecution witnesses knocked both the doors. Their call to the deceased to open the door remained unanswered and only then they took recourse to breaking open the door. According to them, not only the Appellant herein was with them at that point of time, but also he took part in dousing the flames. Indisputably, he took the deceased to the hospital. If the version of the deceased in her dying declaration is accepted as correct, the witnesses and in particular the neighbours would have lodged a First Information Report and in any event, would not have permitted the Appellant to take her to the hospital.
243.The Apex court in the case of Vikramjit Singh Vs. State of Punjab 2006 (12) SCC 306 observed as here under :
13.In the instant case, there are two versions. The learned Sessions Judge proceeded to weigh the probability of both of them and opined that the appellant having not been able to prove its case, the prosecution case should be accepted. In our opinion, the approach of the learned Sessions Judge was not correct. The High Court also appeared to have fallen into the same error. It invoked Section 106 of the Indian Evidence Act although opining:
"The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference."
14.Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule, e.g., where burden of proof may be imposed upon the accused by reason of a statute.
15.It may be that in a situation of this nature where the court legitimately may raise a strong suspicion that in all probabilities the accused was guilty of commission of heinous offence but applying the well-settled principle of law that suspicion, however, grave may be, cannot be a substitute for proof, the same would lead to the only conclusion herein that the prosecution has not been able to prove its case beyond all reasonable doubt.
244.The Apex Court in the case of State of Rajasthan v. Thakur Singh reported in (2014) 12 SCC 211, while allowing the appeal preferred before it by the State of Rajasthan against the judgment and order of the Rajasthan High Court, by which the High Court had set aside the conviction of accused Thakur Singh recorded by the trial court under Section 302 I.P.C. on the ground that there was no evidence to link the respondent with the death of the deceased which had taken place inside the room in the respondent's house, in which he had taken the deceased (his wife) and their daughter and bolted it from within and kept the room locked throughout and later in the evening when the door of the room was broken open the deceased was found lying dead in the room occupied by her and the respondent-accused, held:
“The High Court did not consider the provisions of Section 106, Evidence Act at all. The law is quite well settled, that burden of proving guilt of the accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused, and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts. In the instant case, since the deceased died an unnatural death in the room occupied by her and the respondent, cause of unnatural death was known to the respondent. There is no evidence that anybody else had entered their room or could have entered their room. The respondent did not set up any case that he was not in their room or not in the vicinity of their room while the incident occurred, nor he did set up any case that some other person entered room and cause to the unnatural death of his wife. The facts relevant to the cause of the death of the deceased being known only to the respondent, yet he chose not to disclose them or to explain them. The principle laid down in Section 106, Evidence Act, is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that the deceased was murdered by the respondent. It is not that the respondent was obliged to prove his innocence or prove that he had not committed any offence. All that was required of the respondent was to explain the unusal situation, namely, of the unnatural death of his wife in their room, but he made no attempt to do this. The High Court has very cursorily dealt with the evidence on record and has upset a finding of guilt by the trial court in a situation where the respondent to failed to give any explanation whatsoever for the death of his wife by asphyxia in his room. In facts of the case, approach taken by the trial court was the correct approach under the law and the High Court was completely in error in a relying primarily on the fact that since most of the material prosecution witnesses (all of whom were relatives of the respondent) had turned hostile, the prosecution was unable to prove its case. The position in law, particularly Section 106, Evidence Act, was completely overlooked by the High Court, making it a rife at a perverse conclusion in law.”
245.A Division Bench of this Court in paragraph 24 of the aforesaid judgement rendered in the case of Pawan Kumar versus State of U.P. and reported in 2016 SCC OnLine All 949 held as under:-
"Section 106 of the Evidence Act can not be utilised to make up for the prosecution's in ability to establish it's case by leading cogent and reliable evidence, especially when prosecution could have known the crime by due diligence and care. Aid of section 106 Evidence Act can be had only in cases where prosecution could not produce evidence regarding commission of crime but brings all other incriminating circumstances and sufficient material on record to prima facie probablise it's case against the accused and no plausible explanation is forthcoming from the accused regarding fact within his special knowledge about the incident. That section lays down only this much that if a fact is in the "special knowledge of a person" and other side could not have due knowledge of it in spite of due diligence and care then burden of proving that fact lies on that person in whose special knowledge it is. Section 106 Evidence Act has no application if the fact is in the knowledge of the prosecution or it could have gained it's knowledge with due care and diligence."
246.Thus, what follows from the reading of the law reports referred to herein above, is that prosecution has to establish guilt of the accused filtered of all reasonable prognosis favourable to accused to secure conviction and it is never relieved of its initial duty. It is only when the initial burden has been discharged by the prosecution that the defence of the accused has to be looked into. Section 106 of the Indian Evidence Act can not be applied to fasten guilt on the accused, even if the prosecution has failed in its initial burden.
247.Section 101 to Section 114A of Chapter-VII of the Indian Evidence Act, 1872 deal with subject "OF THE BURDEN OF PROOF." Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proof to prove that fact is upon him. Section 106 is an exception to Section 101 of the Evidence Act which stipulates that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Section 106 of the evidence act has to be read in conjunction with and not in derogation of section 101 Evidence Act. Section 106 of the Indian Evidence Act does not relieve prosecution of it's primary and foremost duty to establish the guilt of the accused beyond all reasonable doubts independent of weaknesses of the defence. It is only when prosecution, for well perceptible and acceptable reasons, is unable to lead evidence because of circumstances beyond it's control including the reason that the fact required to be proved was "within the special knowledge of an accused alone" and prosecution could not have known it by due care and diligence, that Section 106 can be resorted to by shifting burden on the accused to divulge that fact which is "in his special knowledge" and if accused fails to offer any reasonable explanation to satiate judicial inquisitive scrutiny, he is liable to be punished. Section 106 is not meant to be utilized to make up for the prosecution's inability to establish its case by leading, cogent and reliable evidence.
248.However once the prosecution establishes entire chain of circumstances together in a conglomerated whole unerringly pointing out that it was accused alone who was the perpetrator of the crime and the manner of happening of the incident could be known to him alone and within his special knowledge, recourse can be taken to section 106 of the Evidence Act. Aid of Section 106 of the Evidence Act can be invoked only in cases where prosecution could produce evidence regarding commission of crime to bring all other incriminating circumstances and sufficient material on record to prima-facie probablise its case against the accused and no plausible explanation is forthcoming from the accused regarding fact within his special knowledge about the incident.
249.Section 106 of the Evidence Act lays down only this much that if a fact is in the "special knowledge of a person" and other side could not have due knowledge of it in spite of due diligence and care then burden of proving that fact lies on such person in whose special knowledge it is.
250.Thus before Section 106 of the Evidence Act could be applied in the instant case it was incumbent upon the prosecution to establish by cogent and reliable evidence inter alia that the appellants were awake in the night of occurrence; when PW10 Bharti Mandal arrived at the appellants' flat at about 6 am on 16.05.2008, the outer most iron grill door was latched/locked from inside; thirdly even if the outer most iron and grill door was not latched/locked from inside, the appellants if proved to be awake could have heard noise/sounds in their room at the time of assault in their daughter's bedroom; the deceased Aarushi and Hemraj were assaulted by the appellants in Aarushi's bedroom and thereafter they had dragged the dead body of Hemraj from the bedroom of Aarushi upto the terrace after wrapping it in a bed sheet; and the injuries found on the dead body of Aarushi and Hemraj inflicted on them by golf club number no. 5 and surgical scalp.
251.We have already held after carefully scrutinizing the evidence adduced by the prosecution that the prosecution has failed to prove the aforesaid circumstances which the prosecution was required to prove which could have justified the application of Section 106 of the Indian Evidence Act to the facts and circumstances of the present case for the purpose of convicting the appellants for the double murder of their daughter Aarushi and domestic help Hemraj.
252.Moreover, we while examining the theory of alternative hypothesis of the double murder covenanted in the prosecution case itself have already held herein above that there is sufficient evidence on record to which we have referred to herein above and dealt with in detail suggesting entry of outsiders into the flat of the appellants. Moreover, during the course of investigation the CBI had arrested and interrogated Krishna Thadarai, Rajkumar and Vijay Mandal who had remained suspects of the double murder for a considerably long time during the investigation of the case by CBI.
253.Thus in view of the foregoing discussion, we do not find any reasonable basis for holding that what had actually happened in the appellants' flat in the intervening night of 15th/16th May, 2008 was a fact within the special knowledge of the appellant and since the same was not a fact within their special knowledge Section 106 of the Indian Evidence Act could not be invoked against appellants for the purpose of convicting them for the double murder of their daughter Aarushi and domestic help Hemraj on account of their failure to come up with any explanation for the circumstances under which the double murder were committed in their flat in the intervening night of 15/16.05.2008.”
Learned counsel for the appellants further submitted that the
marriage as has been held even by the trial Court, was 8 years old, the couple i.e. the accused Arun Kumar and the deceased Sadhna had been living peacefully separately from their family and that they also had two children and they all were living as a happy family. There was absolutely no motive assigned to the murder. So far as the aspect of dowry is concerned, learned counsel for the appellant submitted that from the entire evidence which had been led by the PW-1 and PW-2, it was evident that apart from their saying that a demand was made for a four-wheeler vehicle, there was no evidence, documentary or oral, which could corroborate their statements produced before the Court.
Sri Amit Sinha, learned AGA opposed the appeal and submitted that if section 106 of the Evidence Act is perused, it is clear that any knowledge which specially is with someone, then it will have to be proved by him and him alone. He submits that in the instant case even if the wife was considered as staying with the husband separately, it was under the roof of the husband's house and everything which happened inside the house had to be known to him and it had to be presumed that he would be able to tell as to in what manner the incident had occurred. Further more, learned AGA submitted that when the PW-1 and PW-2 were stating that the demands of dowry were there then there was no question of concluding that the demand was not there. Also, he submitted that even if the appellant Arun Kumar along with his wife had been staying in the new house which they had built, it could not be denied that the other family members were also staying with the couple.
Having heard Sri V.P. Srivastava, learned Senior Counsel assisted by Sri Jai Prakash Singh, learned counsel for the appellants and Sri Amit Sinha and Sri C.B. Dhar Dubey, learned Additional Government Advocates, we are of the view that if the statements of PW-1 and PW-2 are perused, it becomes certain, to begin with, they had come up with the case that the appellant Arun Kumar was having a joint living with his mother Smt. Shrivati Devi; bhabhi Poonam @ Lado and elder brothers Arvind Kumar and Satendra Kumar but upon cross-examination they definitely acceded to the fact that the couple Arun Kumar and Sadhna were living separately. On page 30 of the paper book, he had clearly stated that : "मु झेयह जा नका री नह ह किका सा धन अपन बच् चोंव पकि का सा थ किकान सा ल ग्रा मु मुड़ि य घुरी का प! ड़ि" अशो$का का मुरी शोमु %का मुका न मुकिकारी य परी रीह थ । मुझे यह भी जा नका री नह ह किका किवव ह का का छ सा मुय ब द इसा का रीण सा किका अरुण अप न भी इ%य का- आ र्थिथ0 का मुदद कारी थ, सा गां!व का ह चोंन्द्रकाशो शोमु %का मुका न मु मुड़ि य जा न सा पहल, अरुण का सा थ किकारी य परी रीह थ । उसाका ब द सा धन इसा का रीणवशो प्रमु$ द शोमु %प!ड़ि" जा का यह 6 आसा मुपरी मुअरुण व बच् चोंका किकारी य परी रीह ह$। इसाका- जा नका री नह ह। मुझे इसा ब का- जा नका री नह ह किका जाब अरुण व सा धन बच् चोंका सा थ ग्रा मु मुड़ि य मुरीह सामु य अरुण न आसा मुपरी मुह अल गां मुका न बन न का लिलय प! ड़ि" कि8वन साह य का लका अकिनल कामु री सा प्ल ट खरी द ह$ औरी उसा मुअल गांरीहन का लिलय मुका न बनव य ह$। मुझे यह भी जा नका री नह ह किका जाब उक् मुका न मुरीहन ल यका द$ का मुरी व रीसा$इ% बन गांय थ ब अरुण सा धन का सा थ मुड़ि य सा इसा मुका न मुरीहन आ गांय ह$। जा$ नय मुका न बन य थ उसा मुलका- का- ल शो मिमु ल थ ।" and this definitely goes to show that the couple were having a separate living. Even PW-2 had stated that while Arun Kumar and Sadhna were staying in Asafpur separately from the joint family and also when they were staying in village Mudhiya, she had never visited them. In fact she had stated that she had not attended the ceremony of house warming of the new house of the couple. Definitely both the PW-1 and PW-2 had not spoken a word of any supporting evidence which would go to substantiate that Arun Kumar and family members had demanded dowry. What is more, we find that the PW-1 and PW-2 were not reliable witnesses. PW-1 who was a recovery agent in the Cooperative Department had taken the help of one Harish Kumar Gupta to get the FIR lodged and he had done so in a planned manner by saying that the marriage had taken place six years prior to the date of incident. This stand of his when was shaken by cross-examination and it came to the fore that the marriage had actually taken place on 21.2.2002 i.e. almost eight years prior to the date of incident then the only conclusion which we can arrive at is that the averments made that the marriage had taken place six years prior to the date of incident was to bring the case within the purview of section 304-B IPC. This makes the witnesses very unreliable.
What is more, we find that the sale deed which was executed in favour of the deceased narrated that she was the wife of Arun Kumar and the sale deed itself was of 3.5.2002 which definitely meant that the marriage had already taken place before that date. The PW-1 further becomes unreliable when he stated in his statement that it was under the pressure of the appellant Arun Kumar and his family that he had described his daughter as the wife of Arun Kumar. This not only falsifies the case but totally puts the PW-1 in the category of discredited witness. Further more, we find that the PW-1 gives wrong statements when he states that upon hearing about the incident, he had come on Tonga and thereafter he states that when Annu had informed him then he along with wife had gone on motorcycle. Had other contradictions not been there then this contradiction might have been not a very noticeable contradiction but in view of the fact that throughout the PW-1 had been stating falsehoods, the contradiction became an important one. What is more, we find from the various statements of the defence witnesses that they had actually come up with the case that the appellant Arun Kumar was in the school where he was teaching and was also getting trained for become a Principal. These witnesses have not been contradicted in any manner whatsoever. We are also definitely of the view that even if the wife had died in the husband's house, it was the prosecution's duty primary to prove that the husband was present in the house. In view of a definite averment made by the first informant that when he reached the house, no one was present, it could not be presumed that the husband was there and, therefore, he had murdered his wife. As per the judgment of the Supreme Court in Jose alias Pappachan vs. Sub-Inspector of Police, Koyilandy & Anr. reported in (2016) 10 SCC 519 wherein it has very categorically been held that a presumption had not to be said that it “could be true” but “it should be such that it had to be true” and when there was only a presumption that the husband could have been there then definitely it would not be presumed that he was actually there.
Under such circumstances, we are of the view that the prosecution also did not fulfill its duty of definitely stating that the husband was in the house at the time when the murder had occurred. Thus, the burden which as per the prosecution lay on the husband to discharge as per section 106 of the Evidence Act, definitely was not there on the husband.
Having found that the prosecution witnesses were unreliable for all the reasons we have given in our judgment, we are thus of the view that both the appeals deserve to be allowed and are, accordingly, allowed. The judgment and order dated 23.12.2013 passed by the Additional Sessions Judge, Budaun so far as it convicted the appellants under sections 498-A, 302/149 IPC and section 4 of Dowry Prohibition Act is set aside. Appellant No.1-Shrivati Devi in Criminal Appeal No.277 of 2014, as per the office report dated 3.8.2026 which is based on the communication dated 3.8.2026 of the Chief Judicial Magistrate, Budaun, has died. Criminal Appeal No.277 of 2014 vis.-a-vis. appellant no.1 thus stands abated. The sole appellant Arun Kumar in Criminal Appeal No.5918 of 2015 and the appellant nos.2, 3 and 4 namely Poonam @ Lado, Arvind Kumar and Satendra Kumar in Criminal Appeal No.277 of 2014 respectively are acquitted of all the charges levelled against them. The appellants are on bail. They need not surrender. Their sureties and bail bonds are accordingly discharged.
(Hon. Achal Sachdev) (Hon. Siddhartha Varma) August 19, 2026
GS