Mahendra Prasad vs The State of Bihar

Navaniti Prasad Singh, J.—These two appeals arise out of judgment of conviction dated 20.6.1991 and order of sentence dated 21.6.1991 passed by the learned 4th Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No. 576 of 1990/184 of 1990. Cr. Appeal No. 263 of 1991 (DB) has been preferred by one Mahendra Prasad and Cr. Appeal No. 280 of 1991 (DB) has been preferred by Deepak Kumar and Munna Lal. They all have been convicted for the offence punishable under Sections 302/ 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and further they have been convicted for the offence punishable under Section 201 of the Indian Penal Code and sentenced to undergo 3 years rigorous imprisonment. The sentences are to run concurrently.

When the appeals were taken up, learned counsel appearing in Cr. Appeal No. 280 of 1991 stated that so far as the appellant Deepak Kumar is concerned, he died on 15.10.1992 and has placed death certificate on record. Accordingly, the appeal, in so far as appellant Deepak Kumar is concerned, abates. These appeals are therefore, relevant in so far as appellants Mahendra Prasad and Munna Lal are concerned.

Let it be noted that the appellants were charged with causing the death of Arti Kumari a young girl 20 years of age being younger sister of appellant Deepak Kumar. Appellant Munna Lal is the brother-in-law of Deepak Kumar and appellant Mahendra Prasad is a friend of Deepak Kumar. The prosecution case is that the informant Abdul Hannan (PW 1) who is the Officer Incharge of Murarpur Police Station, District-Nalanda received secret information that Deepak Kumar with his two associates Munna Lal resident of Guffa Par, P.S.-Biharsharif and Mahendra Prasad resident of Mohalla-Chaukhandi, P.S.-Biharsharif had killed the sister of Deepak Kumar. Upon this information, he immediately goes to Mohalla-Alamganj to the house of Deepak Kumar where he found two people seeing the Police escaped from the house. Upon entering, he found appellant Munna Lal in the house who disclosed himself to be the brother-in-law of Deepak Kumar one of the persons who allegedly escaped. The other as named by the appellant Munna Lal was the appellant Mahendra Prasad. In the house, he found apparently charred dead body of a young girl said to be of Arti Kumari the younger sister of Deepak Kumar. Upon this self statement, the case was registered on 4.2.1990 and investigation was entrusted to PW 9, Alakh Kumar Pandey, the Investigating Officer who was also the member of inspecting party. Upon investigation, chargesheet was submitted against the three appellants and upon cognizance being taken, the case was committed to the Court of Sessions. Charges were framed under Sections 302/ 34 and 201 of the Indian Penal Code to which the appellants pleaded not guilty and asked to be tried.

In order to prove the prosecution case, the prosecution has examined 9 witnesses. They have exhibited: inquest report (Ext. 1), fard-beyan (Ext. 2), formal FIR (Ext. 3) and post mortem report (Ext. 4) as prepared by Dr. S.K. Jha (PW 8). According to the prosecution, appellant Deepak Kumar with the help of other two appellants had strangulated and killed Arti Kumari the younger sister of Deepak Kumar aged 20 years. In order to conceal the evidence, they had, then, tried to burn the body. When the police party arrived, Deepak Kumar and Mahendra Prasad managed to escape. They were named and identified by the appellant Munna Lal who happens to be the brother-in-law of Deepak Kumar and was found present in the house where the dead body was found.

Learned APP submits that the offence having been committed within the confines of the house, the onus lies upon the appellants under Section 106 of the Evidence Act (hereinafter referred to as the Act) to prove their innocence or explain the circumstances of death and their presence. According to him, the prosecution only has to prove and establish homicidal death and presence of the accused in the house. That burden of prove would shift to the accused persons as the offence was within the confines of the house not known to anybody else. If they failed to discharge that onus, the conviction would sustain. To the contrary, leading the argument on behalf of the appellants, Shri Khurshid Alam submitted that not everybody would be answerable in terms of the Section 106 of the Act. It was the house of Deepak Kumar and the deceased was Deepak Kumar''s sister, the burden of prove under Section 106 of the Act would, therefore, be squarely upon Deepak Kumar alone. The other two appellants i.e. appellant Munna Lal who was found in the house and the appellant Mahendra Prasad who alleged to have escaped along with Deepak Kumar would not be covered by the contingency as contemplated under Section 106 of the Act and in their case, the burden would entirely lies upon the prosecution to establish the case beyond all reasonable doubts.

Before solving this legal riddle, it would be appropriate to notice the salient facts.

As to the death of Arti Kumari there is no dispute that she was staying in that house. She was 20 years of age and her death was clearly homicidal. PW 8, the doctor S.K. Jha, conducted post mortem examination and the post mortem report is Ext. 4. There are two important findings which have been remained unchallenged. First that the first and second tracheal rings were found fractured and second the burn injuries were post mortem, thus, he establishes it as a case of death by strangulation and then, burning to destroy or conceal the evidence. Thus, it was neither a case of natural death nor of suicide but clearly a homicidal death. We, then, have the evidence of PW 1 the informant Abdul Hannan, PW 2 Prakash Paswan an A.S.I. and PW 9, Alakh Kumar Pandey, the Investigating Officer who all three had gone to inspect the place upon secret information who clearly testified that appellant Munna Lal was arrested on the spot in the house where the dead body was lying. Two persons managed to escape and Munna Lal, the accused, disclosed their names to be the appellant Deepak Kumar and appellant Mahendra Prasad. These facts are established by the prosecution. We may note that PW 3 Shanti Devi is a neighbour who turns hostile, feigning ignorance. Similarly, PW 4 J.N. Verma also does not support the prosecution. PW 7 Rajan Kumar is also declared hostile. That leaves us PW 5 and PW 6 i.e. Sunil Kumar and Vijay Kumar. They are witnesses of the inquest report. They merely said that they were asked to sign on paper drawn up by the Officer Incharge and they accepted signing the inquest report but again feign ignorance to the rest of the prosecution story. Upon these evidence, the trial court has held that it was for the appellants to explain as to how Arti Kumari was killed, if not by them, and accordingly, the prosecution having established the initial fact of homicidal death, their presence and they have not having offered any explanation, they were found guilty. It is as a consequence thereof, these appeals have been filed.

Learned counsel for the appellants submits that before Section 106 of the Act can be applied, the general rule is that the prosecution must prove its case beyond all reasonable doubts. In our view, this is not the correct statement of law. If the prosecution always proves its case beyond all reasonable doubt and it succeeds, then nothing remains. In our view, Section 106 of the Act is applicable to a special fact situation. It applies to situations where facts are within special knowledge of an individual, then he alone is required to prove it. This is a departure from the normal rule where in a criminal case it is the prosecution to prove its case beyond reasonable doubt and not for the defence to prove its innocence. This provision has a public policy and a purpose. For example, where an offence is committed within the confines of a house, then surely the prosecution has no information about any happening in the house. It cannot be expected to prove anything because the information is not available to the prosecution. It is the immediate inmates of the house who are privy to the happening and therefore, the burden shifts to them. Section 106 of the Act merely shifts the burden of prove upon a specified contingencies as noted above. But that does not deter from the fact that the initial burden is upon the prosecution and it is only upon prosecution discharging that initial burden when the burden of prove then shifts to the defence. Learned APP is correct in submitting that the initial burden has been primarily discharged by the prosecution by proving the homicidal death and the presence of the three appellants there in close proximity of time. Thus, he invokes under Section 106 of the Act to shift the burden upon the defence to explain their presence and how the homicidal death happened. In other words, whether or not they were the author of the death. From the entire evidence, unfortunately, we do not find any suggestion given by the defence pointing to their innocence. However, Mr. Khurshid Alam appearing for the appellant Munna Lal and leading arguments submitted that there is a distinction which is to be kept in mind. Section 106 of the Act and the onus would squarely put upon appellant Deepak Kumar, for it was his house and deceased was his sister who had been killed but surely that would not attach to the appellant Mahendra Prasad who was his friend or to Munna Lal who was his brother-in-law, merely, because they were present when the Police party arrived. He placed reliance on the case of Mulakh Raj, etc. Vs. Satish Kumar and others, in this regard. The argument is not without substance. The case law is relevant. Firstly, we must notice that prosecution has not been able to bring on record any evidence suggesting that the appellant Mahendra Prasad or for that matter appellant Munna Lal ever resided in that house. They were strangers. The only thing is their alleged presence but at the same time, we have prosecution''s specific case that it was Deepak Kumar who killed his sister with the help of these two appellants. It was the house of Deepak Kumar and the deceased was his sister. Surely, the burden under Section 106 of the Act would squarely lay upon Deepak Kumar to explain the facts and circumstances under which in his house his sister was found murdered. But for the fact that the appeal of Deepak Kumar stands abated, we would have ordinarily held him guilty but that would not apply to or extend to the other two appellants i.e. Mahendra Prasad and Munna Lal, even though, appellant Munna Lal was found by the Police in the house and Munna Lal disclosed the name of Mahendra Prasad escaping from the house. Firstly, let us deal with the case of Mahendra Prasad. He has been implicated only upon the allegation levelled by the Police that they had seen two persons running whose identity was disclosed by appellant Munna Lal. Therefore, at best, it is the case of a co-accused naming a person to the Police. In our view, such evidence cannot be relied upon. There was no other evidence so far as Mahendra Prasad is concerned. We indeed cannot uphold this conviction. His appeal, on this short issue itself, has to be allowed and his conviction is set aside.

Now coming to Munna Lal, whose case is slightly different because undisputedly, he was arrested from the house in which the dead body was found. As indicated above, in our view, Section 106 of the Act cannot be invoked against him because the prosecution''s specific case is that it was Deepak Kumar who had murdered his sister in his house with the help of other two appellants. Thus, onus under Section 106 of the Act would have been on Deepak Kumar.

Learned counsel for the appellant, as noticed above, has placed strong reliance on the case of Mulakh Raj (supra). We have considered the aforesaid decision in detail. The facts were that a young beautiful lady of about 20 years of age having just been married and blessed with 3 months old son was killed. The husband informed the father-in-law and others. The Police was also informed immediately and the Police found it to be a case of suicide and took no further action. The father-in-law, then filed a criminal complaint pursuant to which the husband of the deceased, father-in-law, mother-in-law and brother-in-law of the deceased were charged under Sections 302/ 34 and 201 of the Indian Penal Code for causing death of the lady. The post mortem report was similar to the present case, there was fracture of trachea and post mortem burn injuries. The Trial Court convicted the husband, holding that the death had taken place in the bedroom which was on first floor while it acquitted the others. The complainant and State preferred appeal against the acquittal of the others in the High Court and the husband preferred appeal against his conviction to the High Court. All the appeals were heard together. The High Court allowed the appeal of the husband and acquitted him and dismissed the appeals of the State and the Complainant against the acquittal. The matter then, reached to the Apex Court by appeals filed by the complainant and the State against the acquittal of all by the High Court. The Apex Court, upon analysis of the evidence, came to the finding that it was a homicidal death. It also came to a finding that the death had taken place in the first floor, bed-room of the husband. It noted that surely the other members of the family were present and may have helped in concealing the evidence by trying to burn the body and even attempting to make it a look like the case of suicide by attempting to conceal the evidence. Yet the Court found that duty lay upon the husband to explain the circumstances under which the homicidal death took place and the explanation having not been found satisfactorily, he was rightly convicted by the trial court and wrongly acquitted by the High Court and as such his acquittal was set aside and the husband was thus convicted for the offence under section 302 of the Indian Penal Code but when it came to the others, the Apex Court said that it was for the prosecution to prove its case against them beyond all reasonable doubts in respect of both the offences under Sections 302 and 201 of the Indian Penal Code. Thus, the prosecution was unable to succeed. Thus, the acquittal of other relations was upheld by the Apex Court. In our view, this judgment clearly brings out a distinction with regard to burden to prove though it specifically does not mention Section 106 of the Act but the reason and the rational is Section 106 of the Act which is writ large in the judgment.

Applying the principles indicated in the case of Mulakh Raj (supra) to the facts of the present appeals, we noted earlier, so far as Deepak Kumar is concerned, he would have to explain the circumstances under which in his house the homicidal death of his younger sister took place but his appeal has been abated. This cannot be carried to other appellant Mahendra Prasad who is merely his friend or appellant Munna Lal who is the brother-in-law of Deepak Kumar. It has rightly been pointed out on behalf of the appellants that in the case of Mulakh Raj (supra), this burden did not shift from the husband to the father-in-law or the mother-in-law or the brother-in-law. Here the relationship is beyond that. Thus, mere presence of the appellant Munna Lal at the site cannot make him guilty. It is for the prosecution to prove beyond all reasonable doubts that Munna Lal had hand in the culpable homicide amounting to murder or had a positive hand or positive evidence being led showing his effort to conceal the evidence. There being no such positive evidence by the prosecution, we are unable to uphold the conviction of appellant Munna Lal.

Thus, the appeal, in relation to appellant Deepak Kumar, abates; whereas the appeals, in relation to Mahendra Prasad and Munna Lal, are allowed. Their conviction and sentence are set aside. They are relieved from their bail bonds.