1. Heard learned counsel for the appellant and learned A.G.A. for the State and perused the record of the trial Court.
2. This Criminal Appeal has been preferred by the appellant-Prabhat Krishna Verma @ Babloo against the judgment and order dated 18.01.2011 passed by Shri O.P. Tripathi, Additional Sessions Judge, Court No.VIII, District Faizabad passed in Sessions Trial No. 525 of 2008, arising out of Case Crime No. 841 of 2008, "State of U.P. Vs. Prabhat Krishna Verma" under Sections 498-A, 326, 304 and 506 of I.P.C., relating to Police Station Maharaj Ganj, District Faizabad, whereby the appellant has been convicted under Section 302 and 498-A I.P.C. and has been sentenced for life imprisonment and 03 years' rigorous imprisonment, respectively with fine stipulation.
3. The prosecution case as borne out from the record of the trial Court is that informant Mahendra Kumar Verma submitted a written application (Exhibit-ka-1) to Senior Superintendent of Police, Faizabad (Now Ayodhya) stating therein that the marriage of her sister Smt. Rekha Devi was solemnized with appellant. On 20.07.2008 some persons from village Chandanpur came to his house and informed him that about 4-5 days ago, husband of her sister namely Prabhat Krishna Verma @ Babloo had burnt his sister by pouring kerosene oil and she was admitted at District Hospital, Faizabad. He, immediately went to the District Hospital, Faizabad along with his family, where his sister informed him and his family members that on 16.07.2008 at about 9 pm. her husband Prabhat Krishna Verma @ Babloo, on the instigation of her mother-in-law, Vidyawati, father-in-law, Premnath and 'Nanad', Pramila @ Dali, burnt her by pouring kerosene oil and after threatening her of the life of her children got her statement recorded to the tune that she had received burn injuries when she was cooking food. It was further stated in the application that on 03.07.2008 or a day or two before or after 03.07.2008 his sister had informed him about the cruelty committed by her in-law's on his Telephone No. 9450496100. On getting this information, he went to the house of his sister and persuaded his sister as well as her husband not to beat her. His sister was admitted in District Hospital, Faizabad and was hanging between life and death.
4. On an order passed by the S.S.P. Faizabad on this application on 23.07.2008, First Information Report was lodged at Police Station Maharajganj, Faizabad against above mentioned accused persons at Case Crime No. 841 of 2008, under Sections 498-A/326/506 of I.P.C. on 23.07.2008 at 15:20 hours and a Chick F.I.R (Exhibit-ka-13) was written, substance of which was also entered in G.D. (Exhibit-ka-14).
5. Investigation of the case was entrusted to Sub Inspector Shri M.P. Singh, who after recording the statement of informant Mahendra Kumar Verma went to the District Hospital, Faizabad for the purpose of recording the statement of the deceased, who at that point of time was injured, but she was not found fit for recording of her statement. He also recorded the statement of the father of deceased namely Ram Surat Verma and also of Hari Shankar. He also inspected the spot at the pointing of Hari Shankar and also prepared Site Plan (Exhibit-ka-12) and recorded the statement of the villagers.
6. At the time of her admission at District Hospital, Faizabad on 17.07.2008, the injured/deceased Smt. Rekha Devi was medically examined and was found about 80 % burnt and as per the bed head ticket Smt. Rekha Devi succumbed to the injuries on 23.07.2008 at 11:45 pm. and an information to this effect was sent by the Ward Boy Sunil Dubey, District Hospital, Faizabad, substance of which was recorded in the G.D. of the Police Station dated 24.07.2008, on the basis of which, the investigation of the case was converted under Section 304 I.P.C. vide G.D. Entry No. 27, Time 16:20 hours dated 21.08.2008 (Exhibit-ka-15).
7. Naib Tehsildar, Anil Kumar Rastogi got the inquest report of the dead body of deceased Rekha Devi (Exhibit-ka-2), prepared through S.I. Ashok Kumar under his guidance and necessary papers i.e. Letter R.I., Exhibit-ka-4), Letter C.M.O., Exhibit-ka-5, Challan lash, Exhibit-ka-6, Sample Seal, Exhibit-ka-7, Photo Lash, Exhibit-ka-8 were prepared and the dead body was transmitted to the hospital under the custody of Constable Shiv Mangal Yadav for the purpose of postmortem.
8. The postmortem on the dead body of Smt. Rekha Devi was conducted by Doctor N.K. Srivastava on 24.07.2008 at 3:30 pm, who found that the deceased had died at District Hospital, Faizabad on 23.07.2008 at 11:45 pm. She was of average built. Rigor mortis was present both in upper and lower limbs. The line of redness was also present.
Following injuries were found on the person of the deceased:
Old infected burn wound present all over body except scalp, forehead, part of abdomen, part of lower thigh and upper part of leg on right side on anterior aspect, part of Perineum, both soles and feet. Pus flakes were present at places along with granulation of tissues at places and the percentage of burn was found about 85 %.
On internal examination, membranes, pleura, larynx, trachea and both lungs were found congested and pus was coming out on squeezing of lungs. Both chambers of heart were empty. 50 ml. of liquid material was found present in the stomach. In small intestine, gases were found and in large intestine, gases and faecal matter was present. Liver was congested and was of about 1050 grams. Gall bladder was full. Spleen and both kidneys were found congested. Bladder was empty. As per the opinion of the doctor, death of the deceased had occurred due to septicemic shock, as a result of ante-mortem injuries.
9. The Investigating Officer after completion of the investigation found sufficient material against the appellant/accused- Prabhat Krishna Verma and submitted charge-sheet against him under Sections 498-A, 326, 304 and 506 I.P.C.
10. On the case being committed to the Court of Sessions, charges under Section 498-A and 302 I.P.C. were framed against the appellant, to which, he denied and claimed trial.
11. The prosecution in order to prove its case before the Court below relied on following documentary evidence:
Written Application (Exhibit-ka-1) Inquest Report (Exhibit-ka-2) Postmortem Report of deceased-Rekha Devi (Exhibit-ka-3) Chitthi R.I. (Exhibit-ka-4) Chitthi C.M.O. (Exhibit-ka-5) Challan Lash (Exhibit-ka-6) Sample Seal (Exhibit-ka-7) Photo Lash (Exhibit-ka-8) Injury Report of deceased Rekha Devi (Exhibit-ka-9) Information sent to the police station by hospital of the death of deceased Rekha Devi (Exhibit-ka-10) Copy of Bed Head Ticket of Smt. Rekha Devi (Exhibit-ka-11) Site Plan (Exhibit-ka-12) Chick F.I.R. (Exhibit-ka-13) G.D. Qayami (Exhibit-ka-14) Copy of G.D., whereby the case was converted under Section 304 of I.P.C. (Exhibit-ka-15) Charge-sheet (Exhibit-ka-16) Sample Seal (Exhibit-ka-17).
In addition to the above documentary evidence, prosecution also testified following witnesses in support of its case:
P.W.-1/Mahendra Kumar Verma (Informant), P.W.-2/Ram Surat Verma (Father of deceased/Witness), P.W.-3/Vijay Dhari Singh (Witness), P.W.-4/Dr. N.K. Srivastava, (Doctor, who did postmortem), P.W.-5/S.I. Ashok Kumar, P.W.-6/Munendra Pal Singh (Ist Investigating Officer), P.W.-7/Dr. Lakshman Singh (Doctor, who prepared the Injury Report of deceased at the time of admission in the hospital), P.W.-8/Constable Dashrath Lal (Scribe of G.D. Qayami and Chick F.I.R.), P.W.-9/Sunil Kumar Mishra (2nd Investigating Officer), P.W.-10/S.I. Raj Kumar Yadav (3rd Investigating Officer, who after completion of the investigation submitted charge-sheet).
12. After closure of the evidence of the prosecution statement of the accused-appellant was recorded by the trial Court under Section 313 of the Cr.P.C., wherein the appellant has accepted his marriage with deceased and has further stated that the witnesses have falsely deposed against him in order to extract some illegal money from him and that he has been falsely implicated. He further stated that at the time of incident, his wife was preparing tea and her ''Sari' accidentally caught fire. He was out of house and on hearing alarm, he came in the house and attempted to put off the fire and his hands were also burnt in the process.
13. The trial Court after appreciating the evidence available on record found that the prosecution has succeeded in proving its case beyond reasonable doubt and convicted the appellant by passing the impugned judgment and order. Aggrieved by the same, the accused-appellant has preferred this appeal.
14. Learned counsel for the appellant submits that the trial Court has materially erred in appreciating the evidence available on record and has convicted the appellant purely on the basis of ''surmises and conjectures'.
He further submits that the trial Court has completely disregarded the evidence available on record which was not sufficient for appellant's conviction. The dying declaration allegedly made by the deceased has never been proved and the evidence of P.W.-10/S.I. Raj Kumar Yadav with regard to the alleged C.D. recorded by a local T.V. Channel could not be relied on and is not admissible.
It is also submitted that deceased died of an accident as her ''saree' caught fire when she was cooking food and even if the case of the prosecution is taken on its face value it will not travel beyond Section 304 I.P.C. as there was no intention to murder the deceased and the principle of Section 106 of the Indian Evidence Act could not be stretched to include even the accidental death. There are major contradictions in the testimony of the prosecution witnesses and the appellant is liable to be acquitted.
15. Learned A.G.A. on the other hand submits that the trial Court after properly appreciating the evidence available on record has convicted the appellant.
It is further submitted that the trial Court has not committed any illegality or irregularity either in appreciation of evidence or in application of law as the case of the prosecution was proved beyond reasonable doubt before the Court below. There was no contradiction in the testimony of P.W.-1/Mahendra Kumar Verma and P.W.-2/Ram Surat Verma as well as in the testimony of P.W.-3/Vijay Dhari Singh and the medical evidence also corroborates the ocular evidence and, therefore, in view of the evidence available on record interference in the judgment and order of the trial Court is not warranted.
It is also submitted that appellant has failed to explain as to how the deceased died in his house and by virtue of Section 106 of Indian Evidence Act, burden was on him, which he failed to discharge and, therefore, there is no illegality in the conviction recorded by the Court below and, thus, appeal is liable to be dismissed.
16. A survey of the evidence of the prosecution witnesses would reveal that P.W.-1/Mahendra Kumar Verma, who is the informant of this case has stated before the Court below that his sister Smt. Rekha Devi was married to the appellant on 13.03.2000 and three children were born out of this wedlock. He further stated that on 20.07.2008 he got the information that his sister had been burnt at 9:00 pm. on 16.07.2008 and she was admitted in District Hospital, Faizabad. He went there with his family members and was informed by his sister that appellant-Prabhat Krishna Verma on the instigation of her mother-in-law, Vidyawati, father-in-law, Premnath as well as of ''Nanad' Pramila poured kerosene over her and put her on fire at 9:00 pm on 16.07.2008. He also stated that the appellant had threatened her and got her statement recorded to the tune that she got burnt when she was cooking food. He stated to have lodged the FIR and also that the statement of his sister was recorded by a correspondent of a local city T.V. channel and thereafter his sister died on 23.07.2008 at 11:45 pm in the District Hospital, Faizabad. It is further stated by him that during treatment of the deceased all accused persons were present in hospital, but he did not see them from the morning of 21.07.2008. Earlier around 03.07.2008 his sister had informed him that she had been beaten by appellant and he went to the house of the appellant to persuade him not to beat the deceased again.
P.W.-2/Ram Surat Verma is the father of deceased Smt. Rekha Devi. He, corroborating the testimony of P.W.-1/Mahendra Kumar Verma, has stated that the marriage of Smt. Rekha was solemnized with the appellant on 13.03.2000 and he had given sufficient dowry to the appellant but appellant used to treat deceased with cruelty and used to demand money from her for drinking liquor. He persuaded appellant not to treat his daughter with cruelty and also made complaint to other accused persons, but they did not pay any heed to the complaints made by him and on 20.07.2008 at about 3:00 pm. some person informed him that his daughter had been burnt by the accused persons. He went to the District Hospital, Faizabad along with other family members where on 22.07.2008 the deceased told him and other family members that appellant-Prabhat Krishna Verma @ Babloo had burnt her on the instigation of her in-law's. It is also stated by him that deceased also informed him that her false statement had been recorded as the appellant had put her under threat of killing her children.
P.W.-3/Vijay Dhari Singh stated to have arrived at the District Hospital, Faizabad on the information given by P.W.-2/Ram Surat Verma and narrated the whole story pertaining to the cruelty extended to the deceased by the appellant and his other family members. He further stated that a correspondent of local T.V. Channel was covering the incident, who prepared a C.D. of the statement of the deceased and had given it to the P.W.-2/Ram Surat Verma. He has also deposed about being a witness of the Inquest Report.
P.W.-4/Dr. N.K. Srivastava has proved the postmortem report (Exhibit-ka-3) under his writing and signature. The details of the postmortem report has already given in Para-8 of the judgment. He has categorically stated that the death of the deceased had occurred on account of due to septicemic shock ante-mortem burn injuries.
P.W.-5/Sub Inspector of Police, Ashok Kumar has deposed about preparing the inquest report (Exhibit-ka-2) of the dead body of Smt. Rekha Devi at Mortuary of District Hospital, Faizabad who also prepared the necessary papers for the purpose of postmortem and the dead body was given in the custody of Constable Shiv Mangal Yadav, for being taken for postmortem.
P.W.-6/Sub Inspector of Police, Munendra Pal Singh is the Investigating Officer of the case, who stated to have recorded the statement of the informant at police station and thereafter proceeded to District Hospital, Faizabad for recording the statement of injured Smt. Rekha Devi who was admitted in Burn Ward of the Hospital and according to him, she was not in a condition to record her statement, therefore, he collected her injury report. He further stated to have recorded the statement of the witnesses and also prepared the Site Plan (Exhibit-ka-12). He also stated to have perused the dying declaration of the deceased.
P.W.-7/Dr. Lakshman Singh was posted as Emergency Medical Officer at District Hospital, Faizabad on 17.07.2008, where on 1:25 am. Smt. Rekha Devi was admitted by one Ram Ji son of Mewalal . He found her 80 % burnt. He further stated to have prepared the injury report of the injured Smt. Rekha Devi and proved the same under his hand writing and signature as Exhibit-ka-9. It is further stated by him that from 17.07.2008 till 23.07.2008 at 11:45 pm. the deceased was alive and she died on 23.07.2008 at 11:45 pm. He also proved the bed head ticket of the deceased as Exhibit-ka-11 and that the information of her death was communicated to the Police Station Kotwali Nagar under his directions.
P.W.-8/Constable Dashrath Lal Yadav has stated to have prepared the Chick FIR (Exhibit-ka-13) in his hand writing and signatures and also to have entered the substance of the same in the General Diary (Exhibit-ka-14).
P.W.-9/Sub Inspector, Sunil Mishra is the 2nd Investigation Officer of this case, who stated to have recorded the statement of various witnesses including the statement of Smt. Malti Verma, who was a neighbour of appellant with regard to the fact that appellant used to quarrel with the deceased and put pressure on her to give money for consuming liquor and on her refusal used to beat her and also that she saw the appellant assaulting the deceased and thereafter he amended the investigation of case under Section 304 I.P.C. and took the remand of the appellant under Section 304 I.P.C. and also entered the substance of the same in the General Diary (Exhibit-ka-15).
P.W.-10/Sub Inspector, Raj Kumar Yadav, is the 3rd Investigating Officer who has stated that he recorded the statement of the appellant and also watched the Compact Disk (C.D.) with the help of a D.V.D. Player and found that the C.D. is of the date 23.07.2008 when Smt. Rekha Devi was admitted in District Hospital, Faizabad and after watching the whole C.D. he found that in the video, deceased Smt. Rekha Devi is stating as to how the appellant, by pouring kerosene, put her on fire. He also saw that her father was telling the media persons that her daughter Smt. Rekha Devi had been burnt by the appellant and also that his son-in-law (appellant) used to demand money from his daughter for drinking liquor and also beat her regularly. He found the evidence/material against the appellant sufficient and submitted the charge-sheet (Exhibit-ka-16) against him.
17. A careful perusal of the evidence of P.W.-1/Mahendra Kumar Verma and P.W.-2/Ram Surat Verma as well as P.W.-3/Vijay Dhari Singh would reveal that though they are witnesses of fact, but none of them is the eye witness of the incident. It has been stated by P.W.-1/Mahendra Kumar Verma and P.W.-2/Ram Surat Verma, who are brother and father of the deceased, respectively that they got information on 20.07.2008 from some unknown person that deceased Smt. Rekha Devi had been burnt by the appellant on 16.07.2008 at 9:00 pm. and they rushed to the District Hospital, Faizabad and arrived there at about 7:00-7:30 pm. on the same evening. They have also stated that when they met the deceased in the District Hospital, Faizabad, she informed them that appellant on the instigation of other accused persons had poured kerosene on her and put her on fire and also that he after threatening her, got her statement recorded to the effect that she got burnt while cooking food.
18. Perusal of evidence of both these witnesses namely P.W.-1/Mahendra Kumar Verma and P.W.-2/Ram Surat Verma would further reveal that they stated to have reached the hospital on 20.07.2008 at about 7:00-7:30 pm. The prosecution has also produced P.W.-7/Dr. Lakshman Singh under whom the deceased was receiving treatment at District Hospital, Faizabad. This witness has stated the the deceased was admitted in the hospital in the condition of 80 % burn and she was brought by one Ram Ji son of Mewa Lal. He proved the injury report as well as the bed head ticket of the deceased. A perusal of the bed head ticket which is available on record as Exhibit-ka-11, would reveal that the deceased Smt. Rekha Devi was admitted in the hospital by Ram Jeet son of Mewa Lal resident of Village ''Khalohan Purwa', Maharajganj, Faizabad in 80 percent burnt condition. It is also evident from the perusal of the bed head ticket that on 17.07.2008 ''Naib Tehsildar', Sadar, Faizabad attempted to record the dying declaration of the deceased, but could not do so as the deceased was not in a position to record her statement. It is also revealed that another attempt was made by ''Naib Tehsildar', Faizabad on 17.07.2008 at 11:20 pm. to record the statement of deceased Smt. Rekha Devi, but he could not record the same as she was not in a fit condition. However, on 18.07.2008, an entry in the bed head ticket reveals that a dying declaration has been recorded by ''Tehsildar' on 18.07.2008 and the perusal of endorsement on the bed head ticket also reveals that the deceased was in a fit condition to give statement, however, it has not been proved as to what statement has been given by the deceased and as to who recorded the dying declaration as neither the prosecution nor appellant has produced the official/officer, who had recorded the dying declaration of the deceased. The contents of that dying declaration which might have been recorded by some official but has neither been produced nor proved, are found in the statement of P.W.-6/Munendra Pal Singh, who is the 1st Investigating Officer of the case. He in his cross-examination has admitted that on 31.07.2008 he perused the dying declaration of the deceased and copied the same in the Case Diary and after perusing the dying declaration got information that the deceased was not burnt by anyone and she got burnt accidentally while cooking food. Surprisingly, the dying declaration which has been allegedly perused by P.W.-6/Munendra Pal Singh and contents of which were allegedly copied in the Case Diary has not been placed on record of the case and no mention of it has been found in the statement of the appellant recorded under Section 313 of the Cr.P.C. Therefore, in view of the fact that the dying declaration itself has not been produced on record and no witness has been produced who may testify recording the same, we are not inclined to give much weight to this submission of learned counsel for the appellant that any dying declaration in favour of the appellant was actually recorded wherein the deceased has stated that she got burnt accidentally when she was cooking food, more so when no fitness certificate has been obtained by Doctor who was attending the deceased and also for the reason that earlier two attempts to record her statement had gone in vain, as she was not in a position to give any statement.
19. Now we come to another aspect of the case pertaining to the fact that P.W.-1/Mahendra Kumar Verma and P.W.-2/Ram Surat Verma have stated in their evidence that when they reached District Hospital, Faizabad, the deceased informed them as to how she was burnt by appellant on the instigation of his family members. Perusal of the bed head ticket (Exhibit-ka-11) in the background of this statement of the prosecution witnesses, would reveal that on 17.07.2008 the deceased was not in a position to give any statement as her condition had deteriorated. Our view finds support from the endorsement of the ''Naib Tehsildar' on the bed head ticket made on 17.07.2008 wherein it has been specifically written that the deceased is not in a position to give statement. In this scenario, the statement of P.W.-7/Dr. Lakshman Singh assumes importance as he was the Doctor attending injured Smt. Rekha Devi. There is nothing in the evidence of Dr. Lakshman Singh which may suggest that the appellant during the period from 17.07.2008 till 23.07.2008 was in a position to give statement and, therefore, in absence of any such evidence pertaining to the fact that even after sustaining 80 percent burn, the deceased was in a position to speak, we are not inclined to accept the testimony of P.W.-1/Mahendra Kumar Verma and P.W.-2/Ram Surat Verma with regard to the fact that on 22.07.2008 deceased was in a position to make any statement and she told them that she had been burnt by the appellant on the instigation of his family members. Therefore, in our considered view the evidence available on record is not sufficient to prove the fact that the deceased was in a position to speak on 22.07.2008 and that she informed the prosecution witnesses as to how she received burn injuries. On the same score, we also do not accept the testimony of P.W.-3/Vijay Dhari Singh with regard to the fact that on 23.07.2008 when he went to the District Hospital, Faizabad, deceased Smt. Rekha Devi told him that she had been burnt by her husband in the background of the fact that deceased died on 23.07.2008 at about 11:45 pm. So, the evidence of P.W.-3/Vijay Dhari Singh is also not reliable on the point that any statement was given by deceased on 23.07.2008 in the hospital as to how she was burnt by appellant.
20. In absence of any dying declaration, the case now rests purely on circumstantial evidence. The law with regard to appreciation of circumstantial evidence has been clearly enunciated in the case of Hanumant v. State of Madhya Pradesh MANU/SC/0037/1952 wherein Hon'ble Supreme Court has held as under:
"12 ...It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the Accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the Accused and it must be such as to show that within all human probability the act must have been done by the Accused"
Hon'ble Apex Court in the case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR, 1984 SC 1622 has laid down that the following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established;
"1. the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.
2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. the circumstances should be of a conclusive nature and tendency;
4. they should exclude every possible hypothesis except the one to be proved, and
5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
In Jaharlal Das v. State of Orissa, MANU/SC/0586/1991: (1991) 3 SCC 27, it was held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. It is further held in Para 8 that in order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied:
i.) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
ii.) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and iii.) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
In Varkey Joseph v. State of Kerala, MANU/SC/0295/1993, it was held that suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond reasonable doubt.
Therefore, keeping in view the above settled legal position, the law pertaining to cases based on circumstantial evidence can be summarized in following terms:
1. The circumstances relied upon by the prosecution which lead to an inference to the guilt of the accused must be proved beyond doubt;
2. The circumstances should unerringly point towards the guilt of the accused;
3. The circumstances should be linked together in such a manner that the cumulative effect of the chain formed by joining the links is so complete that it leads to only one conclusion i.e. the guilt of the accused;
4. That there should be no probability of the crime having been committed by a person other than the accused.
It is in the light of the aforesaid law that we have to consider the evidence and the circumstances relied upon by the prosecution before the court below. In a case based on circumstantial evidence it is always better for the courts to deal with each circumstance separately and then link the circumstances which have been proved to arrive at a conclusion. Therefore it is incumbent for this Court to see whether the Court Below has committed any error in coming to the conclusion that the prosecution has proved its case beyond reasonable doubt.
21. Keeping in view the statement of P.W.-1/Mahendra Kumar Verma, P.W.-2/Ram Surat Verma and P.W.-3/Vijay Dhari Singh as well as that of the Investigating Officers of the case and also considering the statement of the appellant recorded under Section 313 of the Cr.P.C., it is proved on record that the deceased was burnt in the house of the appellant at 9:00 pm on 16.07.2008. When the wife of appellant had been burnt within the four walls of his house and there was no person who had witnessed as to what had actually happened at that particular time, it is the duty and burden of the appellant, by virtue of Section 106 of Indian Evidence Act, to explain the circumstances wherein the deceased had died. A defence has been taken by the appellant, in his statement recorded under Section 313 of the Cr.P.C., that the deceased was preparing tea on indigenous ''Choolha' and when she was pouring tea, her ''Sari' caught fire. He was outside the house and on an alarm raised by the deceased he came in the house and attempted to put off the fire and got her left hand burnt in the process. This defence of the appellant is not reliable and truthful in the background of the proved facts and circumstances of the case. Firstly, there is no evidence on record which may suggest that appellant got any burn injury on his left hand, secondly, the deceased in the injured condition was admitted in the District Hospital, Faizabad by one Ram Jeet son of Mewa Lal. There is no explanation extended by the appellant as to when he was present in his house and according to him his wife accidentally caught fire and he also attempted to put off the fire, why he did not bring his wife to the hospital ? It raises a serious doubt about the conduct of the appellant and, therefore, his defense that his wife accidentally caught fire while preparing tea is not believable and, therefore, the same has rightly been rejected by the trial Court.
In Trimukh Maroti Kirkan Vs State of Maharashtra reported in MANU/SC/8543/2006, Hon'ble Supreme Court has observed that:
"11. 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 v. Karnail Singh MANU/SC/0585/2003: 2003CriLJ3892 ). 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.
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."
In State of Rajasthan Vs. Thakur Singh reported in MANU/SC/0536/2014 Hon'ble Supreme Court, after discussing many authorities on the subject, has also opined as under:
"22. 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."
22. We have very minutely perused the whole prosecution evidence available on record and have found that the incident had happened on 16.07.2008 at 9:00 pm. when normally the appellant should have been in his home. He is also admitted so in his statement recorded under Section 313 of the Cr.P.C. that at the time of incident he at once came in the house and attempted to save his wife and got his hand burnt in the process. The explanation put-forth by appellant that his wife caught fire accidentally while preparing tea has also not been found truthful. It is therefore an apparent case wherein the appellant has failed to discharge his burden under Section 106 of the Indian Evidence Act and, therefore, in our considered opinion the chain of the circumstances is complete against the appellant and all these proved circumstances point only towards one direction that the deceased had been burnt by the appellant and appellant only and the proved circumstances are incapable of explaining any hypothesis other than that of the guilt of the accused that the appellant has caused the death of deceased by putting her on fire.
23. Now, a serious question which requires our consideration is as to what offence has actually been committed by the appellant as it has been overwhelmingly submitted by learned counsel for the appellant that even if the case of the prosecution is taken on its face value, the offence committed by the appellant would not travel beyond Section 304 of I.P.C. and, therefore, the Court below has committed an error in convicting the appellant under Section 302 of I.P.C. moreso, when after thorough investigation, the Investigating Officer had submitted the charge-sheet under Section 304 of I.P.C.
We, in this regard, have very carefully perused the prosecution evidence and also considered other circumstances available on record. Perusal of the evidence of the prosecution witnesses in the backdrop of above mentioned submission would reveal that P.W.-1/Mahendra Kumar Verma in his statement has stated to have reached the District Hospital, Faizabad on 20.07.2008 where his sister was admitted and found that wife of Hari Shankar, who is the real uncle of the appellant, was sitting with the deceased along with other ladies from appellant's side and his another uncle Prem Nath was sitting in the ''Verandah' along with his wife and children. It has also come in the evidence of this witness that the house of Hari Shankar is situated adjacent to the house of appellant. This witness has significantly admitted that appellant was also present in the hospital who informed him that deceased had been burnt while cooking food, however, it was also stated by him that from the morning of 21.07.2008, none of the appellant's family or appellant was present in the hospital. It is also stated by him that his sister informed him that appellant after beating put her on fire by pouring kerosene oil. In his cross-examination, this witness has further stated that when he met appellant, his left hand was burnt. However, there is no medical report pertaining to the fact of burning of any hand of the appellant. P.W.-2/Ram Surat Verma has also stated that appellant, soon after the marriage had started behaving cruelty with the deceased for the purpose of demanding money for drinking liquor. It is also stated by him that deceased on 22.07.2008 told him that appellant had demanded some money from her soon before the incident and also that she was burnt by appellant by pouring kerosene. The fact that whether deceased, on 22.07.2008, was in a position to make any such statement has already been dealt with by us in negative. But what is relevant in the statement of this witness is that appellant soon before the incident demanded money from the deceased for consuming liquor. He also admitted that he met Prem Nath (Uncle of appellant) in the hospital along with appellant and his other relatives. It is further stated by this witness that on 22.07.2008 Prem Nath was present in hospital and one of the hand of his son-in-law (appellant) was burnt. He, in his cross-examination has admitted that appellant, Prem Nath and mother of appellant remained in the hospital till the death of the deceased. He also admitted that his daughter (deceased) told him that Prabhat was a drunkard. In this scenario, the evidence of P.W.-7/Dr. Lakshman is also important, who was attending the deceased during her treatment in the hospital. This witness has proved the medical examination report and the bed head ticket of the deceased as Exhibit-ka-9 and Exhibit-Ka-10. In both these documents presence of any smell of kerosene oil on the person of the deceased has not been found. Therefore, it is also not proved that the deceased was burnt after pouring kerosene oil. In both these documents the deceased has been shown to have received 80 and 85 % burn injuries. P.W.-4/Dr. N.K. Srivastava, who conducted the postmortem on the dead body of deceased has opined that old infected burn injuries were found on the whole body of the deceased except stomach, thighs and soles of the feet. She was found 85 percent burnt and on internal examination, her both lungs were found congested and pus was oozing on squeezing them. He further stated that the deceased died on 23.07.2008 at 11:45 pm. due to septicemic shock occurred due to burn injuries. In his cross-examination, it has been fairly admitted by him that by septicemium, he meant formation of infected and toxic pus in large quantity and also that the lungs of the deceased were full of pus. His evidence reveals that deceased died of formation of infected and toxic pus in large quantity in her lungs which is a secondary infection.
24. The crux of the above placed evidence of the prosecution is that after burning of deceased Smt. Rekha, all the family members of appellant including appellant himself remained in the District Hospital, Faizabad till her death, though, she was admitted in the hospital by one Ram Jeet. It is not on record as to who is Ram Jeet and what relation he is having either with the deceased or with the appellant. Prosecution witnesses No.1 and 2 namely, Mahendra Kumar Verma and Ram Surat Verma have fairly admitted in their evidence that one of the hand of appellant was burnt and appellant was a drunkard who started committing cruelty with deceased soon after her marriage and used to demand money from her for the purpose of drinking liquor and also that soon before the incident, he asked deceased to give her money for drinking liquor. Though, in our opinion, in absence of any medical/injury report, it could not be believed that deceased would have been in a position to make any statement. It is also proved that deceased died after 07 days of the incident as a result of infected and toxic formation of pus in her lungs which resulted in septicemic shock due to burn injuries, thus, in our considered opinion, the immediate cause of the death of the deceased was acute infection and formation of infected and toxic pus in her lungs which might be due to lapse in her medical treatment.
Here Explanation-2 to Section 299 of I.P.C. assumes important which reads as follows:
"Explanation 2 to Section 299: Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented."
Moreover, the appellant is being convicted on the principle contained under Section 106 of the Indian Evidence Act, as he failed to explain the fact as to how the deceased had died which was specifically in his knowledge and the explanation put-forth by him is not found worth credence by the trial Court and also by this Court. Therefore what had actually happened on the fateful day and time behind the four walls of the house of the appellant with the deceased could only be known either to the appellant or deceased. But keeping in view the entire evidence of the prosecution witnesses and proved circumstances available on record, we are convinced that appellant, in absence of any smell of kerosene oil found on the body of the deceased at the time of her admission in the hospital and also that death of the deceased after 07 days of the incident was due to severe infection which resulted in infected and toxic formation of pus in her lungs giving rise to septicemia which is not the direct result of the burn injuries caused by the appellant, could not be attributed with having any intention to cause the death of his wife. We are also of the considered view that the appellant was certainly not having any intention to cause murder of the deceased, but it could not be said that by putting deceased on fire he did not have knowledge that death may be the remote cause of his act and, therefore, in our considered view, the appellant is liable to be convicted under Section 304-II of the I.P.C.
25. This case may be seen with another angle, as the inference which could be drawn y not discharging the burden under Section 106 of the Evidence Act or not disclosing the fact specially within the knowledge of the accused or providing false explanation may not necessarily lead to the inference that he was having intention to cause death of his wife. In the given facts and circumstances, as is in this case, it may very well be inferred that though appellant put deceased on fire but he was not having any intention to cause death and the fact that the smell of kerosene oil was not found on the body of deceased at the time of her admission in the hospital and the death of the deceased after 07 days of the incident had been the result of severe infection resulted in infected and toxic formation of pus giving rise to septicemia which is not the direct result of the burn injuries caused by the appellant, further fortifies our view that appellant did not intend to cause death of deceased and that death of the deceased was the result of not providing adequate medical treatment, could not be ruled out. Our view finds support from the law propounded in State of Gujarat vs J.P Varu reported in 2016 Cr.L.J 4185 (Supreme Court) by the Supreme Court wherein it is held that the prosecution has to prove the guilt of the accused beyond all reasonable doubts and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favorable to the accused should be adopted. Therefore if two possible views could be inferred, as in this case, the view favourable to the accused should be adopted. Hnce it could safely be inferred that appellant did not intend to cause the death of deceased.
In Camilo Vaz vs. State of Goa, (2000) 9 SCC 1, referring to the ambit of Section 304 of the Code, Hon'ble Supreme Court in similar set of circumstances held thus:
"This section is in two parts. If analysed the section provides for two kinds of punishment to two different situations. (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here important ingredients is the "intention"; (2) if the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on vital part of the body with such a force that the person hit meets his death, knowledge has to be imputed to the accused. In that situation case will fall in part II of Section 304 IPC as in the present case."
In Manjeet Singh Vs. State of Himachal Pradesh: (2014) 5 SCC 697, Hon'ble Apex Court in para 26 held as under:
"26. The question now requires to determine is as to what is the nature of offence that the accused has committed. The evidence produced against the accused does not show that the accused had any motive to cause death of the deceased or have intended to cause such bodily injuries which were sufficient in the ordinary course of nature to cause the death of the deceased. Evidence on record also does not establish that the injuries caused on the body of the deceased must in all probability cause his death or likely to cause his death. On the spur of the moment, during the heat of exchange of words accused caused injuries on the body of the deceased which caused his death. Therefore, the ingredients of the murder as defined in Section 300, Indian Penal Code, have not been established against the accused. In our opinion, the accused was guilty of culpable homicide not amounting to murder Under Section 304, Indian Penal Code, and considering the fact that the accused had no intention to either cause the death of the deceased or cause such bodily injury as is likely to cause death of the deceased, it would be sufficient to impose on accused a sentence of seven years rigorous imprisonment and to impose on him a fine of Rs. 5,000/- and in default o
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f payment of fine, a further imprisonment of six months." The distinction between Section 304 Part I and Part II has been drawn by the Hon'ble Supreme Court in Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648, in the following words: ".....For punishment Under Section 304 Part I, the prosecution must prove: the death of the person in question; that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such act of his was likely to cause death..." In Maniben Vs. State of Gujarat reported in (2009) 8 SCC 796 the deceased died after 8 days of the incident in which the deceased had sustained burn injuries. The accused had thrown a burning wick made of rags on the deceased and thereby set fire to the terylene clothes put on by the deceased. In paragraph 14 of the judgment it was held as follows: "14. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC." In Shanmugam @ Kulandaivelu Vs. State of Tamil Nadu reported in (2002) 10 SCC 4, the doctor who attended the deceased in the hospital stated that the immediate cause of death was infection and also on account of oozing of excreta from the colon and wounds that got infected and became septic. But his evidence did not lead to a definite conclusion that the death could be caused in the ordinary course of nature. The evidence of the doctor who conducted the post mortem also was not categorical so as to form a definite opinion that the injuries inflicted on the deceased were sufficient in the ordinary course of nature to cause death. According to the doctor, the death occurred as a result of septicemia because of puss and infection. He further opined that the wounds on the gall bladder were capable of causing death. But during the cross examination, the doctor stated that it cannot be stated with certainty that the wounds on the gall bladder would result in death. In these circumstances, the Hon'ble Supreme Court held as follows: "At the same time, the nature of injuries and the medical opinion unmistakably point to the fact that the bodily injuries inflicted on the deceased were of such nature that they were likely to cause death. There can be no doubt that the accused intended to cause and did cause the injuries. We are, therefore, of the view that the appellant is liable to be punished under the first Part of Section 304 IPC." 26. From the judgment placed herein before one can easily perceive that the Court held that there was no intention to cause death and the medical opinion was not certain as to whether the injuries, caused with intention, would have been sufficient to cause the death in the ordinary course of nature or not. But, the medical opinion was to the effect that the injury is likely to cause death. Hence death was a remote consequence. It was because of these reasons that the Hon'ble Supreme Court held that the offence would fall only under Section 304 I.P.C. We are also of the considered view that appellant was not having any intention to cause death of his wife and immediate cause of the death of the deceased was acute infection and formation of infected and toxic pus in her lungs which might be due to not providing her adequate medical treatment. 27. In view of above, the appeal filed by the appellant is partly allowed. His conviction under Section 302 I.P.C. is hereby set-aside and he is now convicted under Section 304-II of I.P.C. and having regard to the evidence available on record, is sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. 15,000/- and in default of payment of fine, to undergo further simple imprisonment for one year. His conviction and sentencing with regard to Section 498-A I.P.C. as done by the trial Court is hereby affirmed. All sentences of the appellant shall run concurrently and the period already undergone by the appellant in jail in this case shall be adjusted towards the sentence awarded by this Court. Appellant, as per the report of the office, is in jail in this case. He will serve the sentence as modified by this Court and if he has already served the sentence, as modified by this Court, he will be released from the prison if he is not required to be detained in any other matter. The record of the trial Court be immediately sent to the trial Court along with a copy of this judgment.