Kamal vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—The present appellant, namely Kamal, along with his mother, Smt. Omwati was tried by the Court of Additional Sessions Judge (Fast Track) No. 1, Alwar for causing murder of his father, namely Mularam on 17th of January, 2007 in his residential house in Village Bamboli, Police Station, M.I.A., Alwar.

The trial Judge held that the dead-body was recovered from the house of the appellant from an iron-box within twenty-four hours of the murder and it was incumbent for the accused to explain the death of Mularam, being resident of the house. Having not furnished any explanation by the accused in their statement under Section 313 of Code of Criminal Procedure, 1973, they have not discharged presumption raised under Section 106 of the Indian Evidence Act and, thus, has committed offence punishable under Section 302 and 201 of Indian Penal Code.

Having convicted the appellant for the above said offences, the trial Judge, vide a separate order of even date, sentenced him as under:--

"For offence under Section 302 I.P.C. the appellant was sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/-. In default of payment of fine to further undergo three years additional simple imprisonment.

For offence under Section 201 I.P.C. the appellant was sentenced to undergo three-years simple imprisonment and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo three months additional simple imprisonment.

All the sentences were ordered to run concurrently."

Aggrieved against the conviction and sentence, the present convict/appellant, Kamal has sent instant jail appeal through Superintendent, Central Jail, Bharatpur, praying inter alia that the conviction and sentence, be set aside, and he be acquitted of the charges leveled against him.

Office has reported that Omwati has not preferred any appeal before this Court.

In the instant case, vide order dated 03.04.2008, Ms. Rajesh Kandwal, Advocate was appointed as an Amicus Curiae to argue the appeal on behalf of the appellant.

We have heard the arguments advanced by the learned amicus curiae appearing on behalf of the accused-appellant, and so also the submissions made by the learned Public Prosecutor appearing for the State.

Succinctly stated the facts of the case are that, Sub-Inspector Kushal Singh (PW-10) presented a written-report (Exhibit-P/1) for registration of a formal First Information Report (Exhibit-P/2) bearing No. 28/2007 at Police Station, Udyog Nagar, District Alwar and for registration of a criminal case.

In the Court, Kushal Singh (PW-10) has deposed that on 17.01.2007 he was posted as Sub-Inspector at Police Station, M.I.A. Alwar. On that day, at around 10:00 A.M., he received a telephonic information that Mularam has been murdered by his son, Kamal and wife, Smt. Omwati and they have concealed the dead-body. On receiving information, he constituted a Police Party consisting of Heera Lal, Constable, Chhote Lal, Driver of the vehicle, Bhushan Kumar, Head Constable (PW-1) and Brijesh Kumar, Constable (PW-2). The Police Party arrived at the Village of the accused and reached at their house. The house of the deceased, Mularam was lying locked. On enquiry, one child pointed out towards the present appellant, Kamal, and he was called by Police Party. Kamal was asked about his father, then he replied that he had died. Thereafter, enquiry was made regarding his dead-body, Kamal stated that mother may be aware regarding the fact where the dead-body has been concealed. Kamal was asked about his mother, then he informed that mother had gone in the Village to cook the meals for the inmates of Anganwadi. The mother of Kamal, Smt. Omwati was called from the Anganwadi. She opened the lock of the house. An enquiry was made from her regarding the dead-body of Mularam. Then Kamal and Smt. Omwati informed that the dead-body has been kept in a big iron-box. Smt. Smt. Omwati opened the lock of the box. From the bedding and other household utensils, the dead-body was recovered. Thus, the spot was photographed. The Villagers were called and they identified the dead-body of Mularam. Smt. Omwati disclosed that Mularam had died due to excessive consumption of liquor, whereas the present appellant, Kamal informed that Mularam had died a natural death.

It is to be noted here that the present appellant, Kamal had suffered disclosure statement (Exhibit-P/18), wherein he stated that he concealed one string and can get the same recovered.

It is further case of the prosecution that vide Exhibit-P/8, accused, Kamal got recovered a jute-string and a plastic rope in the presence of Ghanshyam Sharma, who has not been examined and Brahmanand (PW-6).

Dr. Phool Singh Chaudhary (PW-5) on 17.01.2007, being posted as Medical Jurist at General Hospital, Alwar had conducted autopsy on the dead-body of Mularam.

As per the Post Mortem Report (Exhibit-P/7), Doctor had noted as many as fourteen abrasions on the dead-body of deceased, Mularam.

As per opinion of the Medical Board of which Dr. Phool Singh Chaudhary (PW-5) was a Member, the cause of death was asphyxia due to strangulation.

Head-Constable - Bhushan Kumar (PW-1) stated that he was a Member of the Police party, which was led by Sub-Inspector Kushal Singh (PW-10), and this witness has reiterated as to what was stated by witness (PW-10) regarding the recovery of dead-body from the house of the accused.

Constable - Brijesh (PW-2), being a Member of the Police party, has also corroborated the testimony of Kushal Singh (Pw-10).

Banwari (PW-3), being Villager deposed in the Court that at about three months ago, the Police came to the Village and the Police had recovered the dead-body from the house of Kamal in an iron-box lying in the house. This witness further stated that at that time, accused, Kamal and Omwati both were present in the house.

Sampat (PW-4) had attested the inquest proceedings vide Exhibit-P/4.

Brahmanand (PW-6) stated that he was posted as Constable and in his presence vide memo Exhibit-P/8 and Exhibit-P/9, the accused got recovered a jute-string (rope) and a plastic rope.

Abhay Singh (PW-7) was also posted as Head Constable and he stated that on 17.01.2007 and 19.01.2007, the Investigating Officer deposited one iron-box and two strings in the Malkhana.

Madan Singh (PW-8) deposed in the Court that he was having a photo studio in the Village and he had taken photographs of the place of occurrence.

Hazari Lal (PW-9), who was then posted as Station House Officer, Police Station, M.I.A., Alwar, had proved various facets of the investigation.

From the testimony of the witnesses recapitulated herein above, it is apparent that except, Banwari (PW-3), all other prosecution witnesses are the Police Officials. Banwari (PW-3) has only stated that from the house of accused in an iron-box, dead-body was recovered.

Admittedly in the alleged house, Smt. Omwati and Kamal were staying. The dead-body was found concealed in an iron-box. There were fourteen abrasions on the dead-body, which are sufficient to infer that there was a struggle between the deceased and the persons, who committed murder. The cause of death, in the present case, was asphyxia due to strangulation.

Thus, we cannot arrive at any other conclusion, except that Mularam died, as a result of violence in the house, which was occupied by the present appellant, Kamal and his mother, Smt. Omwati.

The prosecution agency, during trial, had examined ten-witnesses and proved on record eighteen documents, being Exhibit-P/1 to Exhibit-P/18 respectively.

The statement of accused was recorded under Section 313 of Code of Criminal Procedure, 1973. He denied all the incriminating evidence put to him and pleaded innocence.

In defence, accused had examined Omprakash (DW-1) and relied upon the statements of two witnesses recorded under Section 161 Cr.P.C., as Exhibit-D/1 to Exhibit-D/2.

In the statement recorded under Section 313 of Code of Criminal Procedure, 1973 the accused has stated that they (he and his mother) were not present in the house. Smt. Omwati was staying with her brother, whereas the present appellant has stated that he was also staying with his maternal uncle.

The accused, in defence, has examined Omprakash (DW-1). This witness stated, in the Court that Smt. Omwati is his sister and Kamlesh is his nephew (bhanja). This witness has stated that five months before the occurrence, his sister Smt. Omwati came and informed that her husband, Mularam, along with Lallu Meena and five/six other persons had consumed liquor and Lallu Meena and his friends made attempt to commit rape with her and given beating, due to which she had suffered injury on her body. Thereafter, the witness went to the Police Station along with her sister and presented report. She was medico-legally examined. After the alleged incident, Omwati and Kamal were staying with him at his native Village Bahala.

We find that the evidence of Omprakash (DW-1), maternal uncle of the appellant cannot be relied, as he is only a convenient witness. In the present case, when the Police reached at the house of the accused, appellant was found there and Omwati at that time was also cooking meals for the inmates of the Aanganwadi. Thus, on the day of occurrence, both Omwati and Kamal were present in their Village in the house, hence, the house from where the dead-body was recovered was in their possession.

No witness has been examined by the defence from the Village to say that the accused was not staying in the alleged house.

Thus, the trial Court has rightly invoked Section 106 of the Indian Evidence Act, as the special circumstances in the knowledge of the appellant and co-accused have not been divulged by them. Appellant has taken no such plea in his statement recorded under Section 313 Cr.P.C.

Recently, the Hon''ble Supreme Court in the case of State of Rajasthan Vs. Thakur Singh, (2014) AIRSCW 4479 : (2014) 8 JT 50 : (2014) 8 SCALE 82 , had observed as under:--

"Discussion and conclusion

Questioning the decision of the High Court acquitting Thakur Singh, the State of Rajasthan has preferred this appeal.

We find that the High Court has not at all considered the provisions of Section 106 of the Evidence Act, 1872.1 This section provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.

Way back in Shambu Nath Mehra Vs. The State of Ajmer, AIR 1956 SC 404 : (1956) CriLJ 794 : (1956) 1 SCR 199 , this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said:

"This [Section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not."

In a specific instance in Trimukh Maroti Kirkan Vs. State of Maharashtra, (2007) CLT 471 Supp : (2007) CriLJ 20 : (2006) 2 DMC 757 : (2006) 9 JT 50 : (2006) 10 SCALE 190 : (2006) 10 SCC 681 : (2006) 8 SCR 156 Supp : (2006) 148 STC 638 , this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said:

"Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."

Reliance was placed by this Court on Ganeshlal Vs. State of Maharashtra, (1992) CriLJ 1545 : (1992) 2 Crimes 161 : (1993) 1 DMC 326 : (1992) 2 JT 592 : (1992) 1 SCALE 811 : (1992) 3 SCC 106 : (1992) 2 SCR 502 , in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife.

Similarly, in Dnyaneshwar Vs. State of Maharashtra, (2007) 1 DMC 732 : (2007) 5 SCALE 350 : (2007) 10 SCC 445 : (2007) 4 SCR 248 , this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.

In Jagdish Vs. State of Madhya Pradesh, (2009) 9 SCC 495 , this Court observed as follows:

"It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt."

More recently, in Gian Chand and Others Vs. State of Haryana, AIR 2013 SC 3395 : (2013) CriLJ 4058 : (2013) 4 JCC 137 : (2013) 10 JT 515 : (2013) 3 RCR(Criminal) 916 : (2013) 9 SCALE 544 : (2013) 14 SCC 420 , a large number of decisions of this Court were referred to and the interpretation given to Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. One of the decisions cited in Gian Chand is that of State of West Bengal Vs. Mir Mohammad Omar and Others etc., AIR 2000 SC 2988 : (2000) CriLJ 4047 : (2000) 9 JT 467 : (2000) 6 SCALE 148 : (2000) 8 SCC 382 : (2000) 2 SCR 712 Supp : (2000) AIRSCW 3230 : (2000) 6 Supreme 172 which gives a rather telling example explaining the principle behind Section 106 of the Evidence Act in the following words:

"During arguments we put a question to learned Senior Counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise."

The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts.

Applying this principle to the facts of the case, since Dhapu Kunwar died an unnatural death in the room occupied by her and Thakur Singh, the cause of the unnatural death was known to Thakur Singh. There is no evidence that anybody else had entered their room or could have entered their room. Thakur Singh did not set up any case that he was not in their room or not in the vicinity of their room while the incident occurred nor did he set up any case that some other person entered the room and caused the unnatural death of his wife. The facts relevant to the cause of Dhapu Kunwar''s death being known only to Thakur Singh, yet he chose not to disclose them or to explain them. The principle laid down in Section 106 of the Evidence Act is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that Dhapu Kunwar was murdered by Thakur Singh.

It is not that Thakur Singh was obliged to prove his innocence or prove that he had not committed any offence. All that was required of Thakur Singh was to explain the unusual situation, namely, of the unnatural death of his wife in their room, but he made no attempt to do"

The similar view was also formulated by the Hon''ble Supreme Court in the case of State of Rajasthan Vs. Kashi Ram, AIR 2007 SC 144 : (2006) 10 JT 28 : (2006) 11 SCALE 440 : (2006) 12 SCC 254 : (2006) 9 SCR 501 Supp , and His Lordship has observed as under:--

"17. It is not necessary to multiply with authorities. The principle is well settled. 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. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated In Re: Naina Mohamed, (1960) CriLJ 620 : (1960) ILR (Mad) 157 : (1960) 73 LW 210 : (1960) 1 MLJ 118 .

There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt."

Since the appellant, along with his mother was staying in the house from where the dead-body has been found concealed in an iron-box, we uphold the conviction of the appellant.

As a parting note, we may notice here that the accused at the time of recording of statement under Section 313 Cr.P.C. has given his age as eighteen-years, occurrence, in the present case, has taken place on or before 17.01.2007 and statement of accused under Section 313 Cr.P.C. was recorded on 23.05.2007. Hence, the possibility cannot be ruled out that the appellant on the day of occurrence was less than eighteen-years of age.

As per amendment made in the Juvenile Justice (Care & Protection of Children) Act, 2000, beneficial provisions of the Act have to apply retrospectively.

In the case of Hari Ram Vs. State of Rajasthan and Another, (2009) 8 JT 47 : (2009) 6 SCALE 695 : (2009) 13 SCC 211 : (2009) 7 SCR 623 : (2009) 6 UJ 2643 , wherein it was held as under:--

"51. Apart from the aforesaid provisions of the 2000 Act, as amended, and the Juvenile Justice Rules, 2007, Rule 98 thereof has to be read in tandem with Section 20 of the Juvenile Justice Act, 2000, as amended by the Amendment Act, 2006, which provides that even in disposed of cases of juveniles in conflict with law, the State Government or the Board could, either suo motu or on an application made for the purpose, review the case of a juvenile, determine the juvenility and pass an appropriate order under Section 64 of the Act for the immediate release of the juvenile whose period of detention had exceeded the maximum period provided in Section 15 of the Act, i.e., 3 years."

In view of ratio of law laid down in the case of Hariram (supra), we direct the Juvenile Justice Board, Alwar to hold an enquiry to determine the age of the present appellant on the day of occurrence. In case, Juvenile Justice Board come to a conclusion that the appellant was less than eighteen-years, he shall be dealt with in accordance with the provision of the Juvenile Justice Board (Care & Protection of Children), Act, 2000, as amended from time to time.

In view of directions issued herein above regarding determination of the age of the appellant, the present appeal is disposed of.

However, it is clarified that in case, the Juvenile Justice Board, Alwar come to a conclusion that the appellant was more than eighteen-years of age on the day of occurrence, then in pursuance of conviction recorded by the trial Court and affirmed by us, appellant shall continue to serve the sentence, awarded by the trial Court.

1106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.