w w w . L a w y e r S e r v i c e s . i n



Vishwanath Gupta & Another v/s State of U.P.


Company & Directors' Information:- GUPTA CORPORATION PRIVATE LIMITED [Active] CIN = U40100MH2005PTC154038

Company & Directors' Information:- M R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1992PTC051324

Company & Directors' Information:- GUPTA INDIA PRIVATE LIMITED [Active] CIN = U51311DL1996PTC077255

Company & Directors' Information:- GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U52110DL1974PTC007339

Company & Directors' Information:- GUPTA AND GUPTA PRIVATE LIMITED [Active] CIN = U55204DL1954PTC002390

Company & Directors' Information:- S K GUPTA PRIVATE LIMITED [Active] CIN = U26900MH1973PTC016294

Company & Directors' Information:- R. K. GUPTA AND COMPANY INDIA PRIVATE LIMITED [Active] CIN = U74899DL1993PTC052138

Company & Directors' Information:- B R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U63013DL2000PTC107343

Company & Directors' Information:- T N GUPTA PVT LTD [Active] CIN = U02005WB1951PTC020141

Company & Directors' Information:- A V GUPTA AND COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U24239DL1999PTC102248

Company & Directors' Information:- Y P GUPTA AND COMPANY PVT LTD [Under Process of Striking Off] CIN = U74899DL1983PTC016661

Company & Directors' Information:- J S GUPTA AND CO PVT LTD [Strike Off] CIN = U20211UP1975PTC004078

Company & Directors' Information:- M K GUPTA AND CO PRIVATE LTD [Strike Off] CIN = U74999DL1979PTC009517

Company & Directors' Information:- A J GUPTA AND CO PRIVATE LIMITED [Strike Off] CIN = U74210UP1980PTC004986

Company & Directors' Information:- D. R. GUPTA & COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL1944PTC000794

Company & Directors' Information:- S P GUPTA AND CO PVT LTD [Strike Off] CIN = U26932RJ1972PTC001459

    Criminal Appeal No. 1492 & 1491 of 2010

    Decided On, 26 November 2020

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE RAMESH SINHA & THE HONOURABLE MR. JUSTICE SAURABH SHYAM SHAMSHERY

    For the Appearing Parties: ----------



Judgment Text

(Per Ramesh Sinha, J. for the Bench.)1. The above two criminal appeals have been preferred against the judgment and order dated 22.2.2010 passed by Additional Sessions Judge, Kushi Nagar Padrauna in S.T. No. 168 of 2001 under section 498-A, 304-B, 302, 201 I.P.C. convicting and sentencing the appellants under section 498-A I.P.C. for two years imprisonment, under section 304-B I.P.C., for ten years imprisonment, under section 302 I.P.C. for life imprisonment and fine of Rs. 10,000/- and in default of payment of fine further imprisonment of one year and under section 201 I.P.C. for three years imprisonment.2. As the above mentioned two criminal appeals have been preferred against the same judgment and order, hence the same are being heard and decided together by this common judgment.3. The brief facts of the case are that the First Information Report was lodged by the informant Pooranmasi (hereinafter referred to as 'the informant') stating that he had married his only daughter Km. Vidya (hereinafter referred to as 'the deceased') in the year 1989 with one Aniruddha Gupta son of Vishwanath Gupta resident of village Gaunariya, police station Kaptanganj, District Padrauna. In the marriage he has given sufficient dowry and only one bicycle was left to be given which was continuously demanded by Aniruddha and his father Vishwanath, who used to threatened and also frequently used to abuse, harass and torture his married daughter in various manner. The informant at regular intervals had gone to village Gaunaria and pacify her daughter and son-in-law Aniruddha and demanded time to give bicycle but on account of poverty he could not give bicycle to them. His daughter was also having infant child aged about two and half years, namely, Raj Kumar. In the intervening night of 2/3.1.1996 at about 12 hours his daughter and her infant child were murdered on account of non fulfillment of demand of dowry and in the night itself the dead body of the deceased Smt. Vidya along with her child was cremated. When the informant and his family members came to know about death and disposal of the dead body of their daughter Smt. Vidya and her infant child then they were shocked and went to the village Gaunaria and came to know about all the facts. When, the informant made a query from Vishwanath and his family members as to why the information about the death of his daughter and her infant child and performance of their last rites were not communicated to them immediately, Aniruddha and Vishwanath got angry and abused him and stated that he immediately leave their house as because of him the said incident had taken place. The informant also informed about the incident at police station Kaptanganj but his F.I.R. was not lodged, hence he informed about the same to Superintendent of Police by submitting the written report on the basis of which the F.I.R. was registered as case crime no. 50 of 1996 under sections 498-A, 304-B, 302, 201 I.P.C., police station Kaptanganj, District Kushi Nagar on 29.3.1996 at 11:30 a.m.4. After registration of the F.I.R., the Investigating Officer interrogated the witnesses and recorded their statements under section 161 Cr.P.C. He made a spot inspection of the place of occurrence and made site plan (Ex. Ka-4) of the same and also visited the place where the cremation was done and prepared the site plan of the said place which was marked as (Ex. Ka. 5). After investigation, on 5.5.1996 charge-sheet was submitted against appellants Vishwanath Gupta, Harendra Gupta and Aniruddha for the offence under sections 498-A, 304-B and 201 I.P.C. before the Magistrate, who committed the case to the Court of Sessions.5. The trial court framed charges against appellants Vishwanath Gupta, Harendra Gupta and Aniruddha under sections 498-A, 304-B, 201 I.P.C. on 12.3.2001 and under section 302/34 on 13.9.2001 respectively.6. During the pendency of trial, accused Aniruddha Gupta died and his trial was ordered to be abated on 10.3.1997.7. The appellants denied charges framed against them and claimed their trial.8. The prosecution in support of its case has examined P.W. 1 Pooranmasi, P.W. 2 Smt. Jhinki, P.W. 3 Constable Dinesh Singh.9. The statements of the appellants were recorded under section 313 Cr.P.C. by the trial court and they did not led any evidence.10. P.W. 1 Pooranmasi Gupta in his deposition before the trial court has reiterated the prosecution case and stated that the incident had taken place 13 years back. His daughter Smt. Vidya's marriage was performed in village Gaunaria with Aniruddha according to Hindu rites and traditions 20 years back and in the marriage he could not give bicycle and after marriage, when his daughter went to her in-law's house, accused Aniruddha and Vishwanath used to demand bicycle and used to abuse her. His daughter had an infant child by the name of Raj Kumar, who was aged about two and half years. On the day of incident, his daughter and her infant child were done to death by accused Aniruddha and Vishwanath and after killing them their last rites were also performed by accused persons. On receiving information, about the killing of his daughter and her infant child and coming to know about the fact that their bodies have been cremated, from another person of the village, he went to his daughter's in-law's house to enquire about the incident and when query was made by him about the same, Aniruddha and Vishwanath abused him and asked him to go away from their house. Thereafter, he went to the police station to lodge the F.I.R. but when no heed was paid to his request then he approached the Superintendent of Police of the district where he got a written report typed and signed the same. The person, who typed the written report had read over the same to him. The Circle Officer thereafter had gone to the place of occurrence and he met him. The Circle Officer had also gone to his house and thereafter went to the house of his daughter. The statement of the informant was also recorded under section 161 Cr.P.C. He proved the written report (Ex. Ka.1) and his signature on the same stating that it was given at the police station under his signature. In his cross examination, this witness had stated that the information about the death of his daughter Smt. Vidya was given to him at door of his house by a person but he could not tell as to who had given the said information. He stated that the information was given in the presence of Jhinki and Narmada. He stated that the person, who had come to inform about the death of Smt. Vidya at his house, was aged about 25 years. He stated that several letters regarding the demand of bicycle in dowry by the accused persons had come but he had thrown away the same. The witness had stated that he had studied upto class-IV and he could read Hindi. Further, in his cross examination, he has stated that he had given blank paper to Superintendent of Police bearing his signature and what was written on the same, he could not tell. The Circle Officer had not taken his statement under section 161 Cr.P.C. His daughter and her son were ill for several days and because of their ailment both have died. The father-in-law and mother-in-law of his daughter have not tortured her at any point of time.11. P.W. 2 Smt. Jhinki, who is the mother of the deceased Smt. Vidya and wife of P.W. 1 was examined by the trial court and in her statement, she has stated that the name of her daughter was Vidya and her marriage was performed with Aniruddha in village Gaunaria 20-25 years ago from the date of her deposition before the trial court. After marriage Gauna ceremony was performed. In dowry there was no demand for bicycle. Aniruddha, Vishwanath and Harendra never used to torture her daughter for want of bicycle in dowry. She used to go to the house of her daughter frequently but her daughter did not tell anything to her. It has been stated by her that her daughter had a son aged about two and half years. Her daughter Smt. Vidya and her son both died in her house but she could not tell as to how they died. After the death of her daughter and her child Raj Kumar, information was given to them. On receiving the information, she along with her son Harishchandra had gone to her daughter's in-laws house. She does not know whether for the death of her daughter and her minor son, any report was lodged or not. The Circle Officer and the Sub Inspector had not recorded her statement under section 161 Cr.P.C. This witness was declared hostile by the prosecution.12. In the cross examination by the A.D.G.C. (Criminal), she stated that when she reached her daughter's in-laws house then the bodies of her daughter and her child Raj Kumar have already been cremated by her son-in-law and after staying there for a day she come back to her house. She did not met any police personnel and when her statement under section 161 Cr.P.C. was read over to her she denied the same. She denied the suggestion that she in order to save the accused Aniruddha, Vishwanath and Harendra, who had murdered her daughter and her minor son and cremated their bodies for want of bicycle, she is falsely deposing. Further in her cross examination by the defence, it was stated by her that the in-laws of her daughter had never tortured her daughter Smt. Vidya or demanded any dowry from them.13. P.W. 3 Constable Dinesh Singh in his examination-in-chief before the trial court has deposed that he knew Head Moharrir Constable Shashikant Pandey and is conversant with his signature and hand writing. He proved the chik F.I.R. (Ex. Ka. 2) in the hand writing and signature of Constable Shashikant Pandey. He further proved Ex. Ka.3 of the G.D. entry which was in the hand writing and signature of Constable Tuntun Ram as he was conversant with his writing and signature. He further stated that he also knew Circle Officer Rishipal Singh and was also conversant with his hand writing and signature. He also knew Brij Bhushan Singh, who had worked with him and was conversant with his hand writing and signature and has proved paper no. 7 Ka-1, 7 Ka-2 which were in the hand writing and signature of Brij Bhushan which also bears the signature of Circle Officer Rishipal Singh and proved the same as Ex. Ka. 4 and 5. The witness further deposed that S.I. Mahant Yadav was known to him and he is conversant with his hand writing and signature and has proved Ex. Ka-6 in the hand writing and signature of S.I. Mahant Yadav and further proved Ex. Ka. 7 and stated that the charge-sheet was in the hand writing and signature of S.S.I. Mahant Yadav.14. The trial court after going through the evidence of the prosecution has recorded the finding of conviction and sentence of the appellants Vishwanath Gupta and Harendra Gupta for the offence under section 498-A/304-B I.P.C. and sentenced them for 10 years R.I. under section 304-B I.P.C. for the death of deceased Smt. Vidya and under section 302/34 I.P.C. for the murder of deceased Raj Kumar for life imprisonment vide impugned judgment and order dated 22.2.2010.15. Being aggrieved by the impugned judgment and order, the appellants preferred the present appeals against their conviction and sentence.16. Heard Sri Ram Krishna, learned counsel for the appellants, Km. Meena, learned A.G.A. for the State and perused the impugned judgment and order as well as lower court record.17. Learned counsel for the appellants submits that the appellant Vishwanath Gupta is the father-in-law of the deceased. He was named in the F.I.R. along with Aniruddha-husband of the deceased Smt. Vidya. So far as appellant Harendra, who is the brother-in-law (Devar) of the deceased Smt. Vidya is concerned, he was not named in the F.I.R. but during the course of investigation his complicity was shown and charge-sheet was submitted against him along with appellant Vishwanath and accused Aniruddha. He submitted that appellant Vishwanath, who is father-in-law of the deceased Smt. Vidya, is aged about 75 years whereas appellant Harendra, who is brother-in-law (Devar) of the deceased Smt. Vidya is aged about 50 years. Both of them are in jail since 22.2.2010. He vehemently submitted that the deceased Smt. Vidya was living along with her husband and her children and the two appellants had no concern with the affairs of the deceased Smt. Vidya and her husband. They have been falsely implicated in the present case only on account of the fact that they were in-laws of the deceased Smt. Vidya and were living in the same house where the deceased Smt. Vidya was living along with her husband and minor child. He next submitted that though P.W. 1, who is the informant of the case and father of the deceased Smt. Vidya, had supported the prosecution case before the trial court but in his cross examination he denied the prosecution case and denied the involvement of the two appellants in the incident and negated from his earlier statement made before the trial court and stated that the deceased Smt. Vidya and her child died on account of ailment as they were ill for last several days. So far as the evidence of P.W. 2-Smt. Jhinki mother of the deceased Smt. Vidya is concerned, he submitted that she did not support the prosecution case right from beginning and was declared hostile by the prosecution. He further argued that the evidence of P.W. 1 before the trial court in his examination-in-chief also cannot be the basis of conviction of the appellants for the offence in question and the trial court committed gross illegality in convicting and sentencing the two appellants ignoring the fact that the F.I.R. of the incident was lodged after more than three months of the incident by the P.W.1. He submitted that the implication of the two appellants in the present case is an afterthought. He pointed out that even the appellant Harendra was not named in the F.I.R. and the allegation which have been levelled for demand of bicycle and the committing the murder of the two deceased, was with respect to accused Aniruddha, who was the husband of the deceased Smt. Vidya and only bald allegation was made against appellant Vishwanath for the harassment of the deceased Smt. Vidya. He further submitted that the presumption drawn against the two appellants under section 113-B of the Evidence Act for committing the murder of the deceased Smt. Vidya and her son for want of bicycle is against the evidence on record. In support of his argument he placed reliance on the judgment of Punjab and Haryana High Court in the case of Gurmukh Singh vs. State of Haryana reported in 1991 (1) Crimes 112-113 where the Court observed that in a case under section 304, 498-A I.P.C. where the evidence of the parents of the deceased is found to be weak and that of independent witness goes against the complainant, the prosecution case cannot be said to be established beyond reasonable doubt. The next case cited by him in support of his argument is State of Himachal Pradesh vs. Smt. Manju Rani reported in 2013 Crl.L.J. 101 and referred paragraphs 10, 14, 15, 16, 17 and 18 in which it has been observed that the offence under section 498-A, 304-B I.P.C. read with Section 113-B can be invoked only when it is established and proved that there had been demand for dowry. When there are infirmities in the evidence of the prosecution and improvements have been made in the testimony of the witnesses, acquittal would be the only consequence.18. So far as the conviction of two appellants under section 302/34 I.P.C. for the murder of the deceased Raj Kumar minor child of the deceased Smt. Vidya, by the trial court is concerned, he vehemently argued that the prosecution has failed to bring on record any evidence against the appellants which could establish that it was the two appellants, who committed murder of deceased Raj Kumar as the onus firstly lies on the prosecution to prove its case beyond reasonable doubt against the appellants and simple raising onus on the accused in view of the Section 106 of the Evidence Act to explain the death of the deceased Raj Kumar within their special knowledge, is not sustainable. He argued that the two appellants no doubt were living in the same house where the deceased Smt. Vidya was living along with her husband and minor child-Raj Kumar and simply because the two appellants were living in the same house where the incident had taken place and they have failed to explain the death of the deceased Raj Kumar in their house, is not alone circumstance or the fact which may hold them guilty for the murder of the deceased Raj Kumar. The trial court had erred in convicting the two appellants for his murder. He submitted that it is quite possible that there was some uncordial relationship between the deceased Smt. Vidya and her husband Aniruddha and because of said fact, the deceased Smt. Vidya and her minor child Raj Kumar died in mysterious circumstances and their last rites were performed by the husband of the deceased Smt. Vidya in the non presence of the family members of the deceased- Smt. Vidya, who did not raise any objection regarding the cremation of the two deceased and after three months of the incident the F.I.R. was lodged against the appellants Vishwanath and accused Harendra, who was the Devar of the deceased Smt. Vidya for harassment and oblique motive. He submits that the explanation given by the prosecution for the delay in lodging the F.I.R. is not at all satisfactory as the informant has stated that after receiving the information about the incident he visited the house of the appellants and thereafter went to lodge the F.I.R. at police station but the same was not lodged, hence he approached the Superintendent of Police and submitted a written report for the same, thereafter, the F.I.R. was lodged. He argued that the conviction of the appellants by the trial court is not sustainable in the eyes of law and the same be set aside and the appellants be acquitted.19. On the other hand, learned A.G.A. has opposed the arguments of learned counsel for the appellants and submitted that the deceased Smt. Vidya died an unnatural death in her matrimonial home within seven years of marriage and her dead body was also disposed of by the appellants along with her husband Aniruddha without informing the parents of the deceased Smt. Vidya. She further stated that the informant P.W. 1, who is the father of deceased Smt. Vidya had supported the prosecution case in its entirety in his examination-in-chief before the trial court but it appears that thereafter the accused pressurize and won over him, hence he denied the involvement of the appellants in the present case in his cross examination. The evidence of P.W. 1 goes to show that the deceased Smt. Vidya and her minor child Raj Kumar were done to death in the in-laws house of deceased Smt. Vidya where she lived along with her husband and appellants, hence the trial court has rightly convicted the appellants raising presumption of dowry death under section 113-B of the Evidence Act against the appellants and convicted them under section 304-B IPC and sentenced them for ten years R.I. So far as conviction of the appellants under section 302/34 I.P.C. for the murder of the minor child of the deceased Smt. Vidya, namely, Raj Kumar is concerned, the trial court has rightly sentenced and convicted them for life imprisonment with the aid of Section 106-B IPC as the two appellants failed to explain the death of minor child of deceased Smt. Vidya in their house. She submitted that the fact that the two deceased were ill for last several days and died together appears to be highly improbable and false explanation, thus she argued that the appeals of the appellants have no force and are liable be dismissed.20. We have considered the submissions advanced by learned counsel for the parties and have meticulously perused the evidence and material brought on record.21. It is an admitted fact that the marriage of deceased Smt. Vidya was solemnized with co-accused Aniruddha in the year 1989 and in the intervening night of 2/3.1.1996 at about 12 hours the deceased Smt. Vidya along with her infant child, namely, Raj Kumar aged about two and half years died in suspicious circumstances in the house of the appellants. After the incident, the dead bodies of deceased Smt. Vidya and of her infant child was cremated without informing either to the police or to the informant, who is the father of deceased Smt. Vidya, hence neither Panchayatnama nor post mortem of the dead bodies of two deceased were conducted, thus the cause of death of both the deceased could not be ascertained. The F.I.R. of the incident was lodged against appellants-Vishwanath Gupta-father-in-law of deceased Smt. Vidya and Aniruddha-husband of deceased Smt. Vidya, who died during the pendency of trial. During the course of investigation, the involvement of appellant-Harendra Gupta, who is brother-in-law (devar) of deceased Smt. Vidya came into light on account of which charge-sheet was submitted against three accused persons, namely, Vishwanath Gupta, Harendra Gupta and Aniruddha for the offence under sections 498-A, 304-B, 201 I.P.C. and 3/4 D.P. Act by the Investigating Officer.22. The trial court on 12.3.2001 framed charges against appellants Vishwanath Gupta and Harendra Gupta for the offence under sections 498-A, 304-B, 201 I.P.C. and for the death of deceased Smt. Vidya whereas on 13.3.2001 framed charges against the appellants under section 302/34 I.P.C. for the death of deceased Raj Kumar-son of deceased Smt. Vidya, aged about two and half years.23. P.W. 1 Pooranmasi Gupta, who is the father of deceased Smt. Vidya has supported the prosecution case in its entirety in his examination-in-chief before the trial court which was recorded on 10.11.2009 but on 1.12.2009 when his cross examination was recorded by the trial court he did not support the prosecution case and resiled from his earlier statement stating that under the influence of some persons of village Gaunaria, he gave evidence against the appellants but he could not disclose the name of the said persons, who pressurize and influence him for giving the said statement before the trial court. He further denied the suggestion that in order to save the accused-appellants he is falsely deposing in cross examination in their favour.24. P.W. 2 Smt. Jhinki, who is the mother of deceased Smt. Vidya has denied the prosecution case right from its inception before the trial court, hence she was declared hostile by the trial court.25. Thus, in these circumstances this Court has to evaluate the evidence led by the prosecution in order to examine whether the conviction and sentence of the appellants for the offence which they have been charged with is justified or not.26. The contention advanced by learned counsel for the appellants that the deceased Smt. Vidya was living along with her husband and her infant child and the demand of bicycle was being made by Aniruddha-husband of deceased Smt. Vidya and the appellants, who are father-in-law and brother-in-law of deceased Smt. Vidya, have no concern with their affairs and the deceased Smt. Vidya though died an unnatural death in a suspicious circumstances in the house of the appellants, they cannot be fastened with the criminal liability of the death of deceased Smt. Vidya and her infant child, is not sustainable as the appellants used to live in the same house in which the deceased Smt. Vidya and her husband were living, hence the conviction and sentence of the appellants for the death of deceased Smt. Vidya, by the trial court does not suffer from any manifest error at all. Firstly on the ground that the marriage of deceased Smt. Vidya with Aniruddha was solemnized in the year 1989 and Gauna ceremony was also performed and within seven years of marriage, the deceased Smt. Vidya in the intervening night of 2/3.1.1996 died an unnatural death in suspicious circumstances and further her infant child Raj Kumar aged about two and half years was also done to death and their dead bodies were disposed of by the appellants without giving information either to the police or to the parents of deceased Smt. Vidya, who on receiving information about the same express their shock and enquired from the appellants as to why they were not informed about the death of both the deceased and their dead bodies were disposed of on which the accused appellants threatened the informant and ousted him from their house. Secondly, as per the evidence of P.W. 1 recorded before the trial court in his examination-in-chief as well as in the F.I.R. in which he categorically stated that the demand of bicycle, which was made by the appellant Vishwanath and accused Aniruddha as the same was not given by P.W. 1 at the time of marriage, could not be fulfilled by the informant on account of poverty due to which the deceased Smt. Vidya was being threatened and also used to torture by the appellant Vishwanath and accused Aniruddha and was done to death in her matrimonial home and her dead body was also disposed of without performing panchayatnama and post mortem of the deceased. So far as the argument of learned counsel for the appellants that the F.I.R. was lodged after inordinate delay of three months which shows that the informant-P.W. 1 after last rites of the two deceased were performed, he for his oblique motive and for harassment of the appellants had lodged the F.I.R. against them after due deliberation and consultation and the prosecution has failed to give plausible explanation for the delay in lodging the F.I.R. of the incident, has no force. Here it would be important to note that in the F.I.R. itself, the informant has stated that when he went to concerned police station, i.e., police station Kaptaganj for informing about the incident, his report was not lodged, hence he gave application to the Superintendent of Police requesting for lodging the F.I.R. of the incident in pursuance of which the F.I.R. was lodged, thus in our opinion the delay which occurred in lodging the F.I.R. of the incident, is not fatal to the prosecution case. The other argument of learned counsel for the appellants that the appellant Harendra Gupta, who is the brother-in-law (devar) of deceased Smt. Vidya was not named in the F.I.R. as the same was lodged against appellant Vishwanath Gupta and accused Aniruddha husband of deceased Smt. Vidya and during the course of investigation, the involvement of appellant Harendra Gupta has come into light which is an afterthought in order to falsely implicate him in the present case, is also of not much significance as admittedly, the appellant Harendra Gupta was also living in the same house along with appellant Vishwanath and accused Aniruddha and after the incident no effort was made by him also to inform about the incident either to the police or to the parents of deceased Smt. Vidya and the dead body of both the deceased were disposed of in suspicious manner. Both the appellants in their statements recorded under section 313 Cr.P.C. have failed to explain or give reasonable explanation regarding the death of two deceased, who died unnatural death in suspicious circumstances in the house in which they were living and were found present on the date and time of the incident. They have also not led any defence evidence to explain the death of two deceased, who died unnatural death in their house. The argument of learned counsel for the appellants that the evidence of P.W. 1 and P.W. 2 is weak evidence and the case law which has been cited in support of the said argument is also not sustainable on the ground that P.W. 1 Pooranmasi father of deceased Smt. Vidya has supported the prosecution case in toto in his examination-in-chief recorded before the trial court on 10.11.2009 and the cross examination was deferred which was recorded on 10.11.2009 just after one month of his examination-in-chief wherein he retracted his statement made before the trial court in his examination-in-chief and stated that earlier statement which was made by him before the trial court was under the influence of some persons of the village Gaunaria but he could not disclosed the name of the persons, who pressurize or influenced him to give such statement. Further he has stated that the deceased Smt. Vidya and her son died on account of some ailment and further the deceased Smt. Vidya was not harassed and tortured by the appellants nor her daughter made any complaint against them nor the appellants had demanded bicycle from her, the said statement and conduct of P.W. 1 goes to show that he had been won over by the accused persons and the explanation which has come forward through him that the two deceased died on account of ailment is a false explanation as there was no medical document produced either by P.W. 1 or by the accused appellants to corroborate that the two deceased died on account of ailment, thus the trial court after going through the evidence brought on record has rightly convicted and sentenced the appellants for the offence under section 498-A, 201 I.P.C. and sentenced them under section 304-B I.P.C. for 10 years R.I. drawing presumption under section 113-B of the Evidence Act as a case of dowry death proved against the appellants and recorded conviction against them for the said offences.27. So far as conviction and sentence of two appellants for causing the death of the infant child of deceased Smt. Vidya, namely, Raj Kumar aged about two and half years by the trial court, the statement made by learned counsel for the appellants that the onus on the two appellants in view of Section 106 of the Evidence Act and convicting them under section 302/34 IPC for the murder of deceased Raj Kumar by the trial court is absolutely illegal and cannot be sustained in the eyes of law, has also no substance as it has come in the evidence that has been referred above that admittedly, the deceased Smt. Vidya along with infant child Raj Kumar was living with her husband in the same house in which the two appellants were also living and on the date and time of incident both of them were present in the house and the deceased Raj Kumar also died in mysterious circumstances and his dead body was also disposed of without getting inquest proceeding and post mortem being conducted in order to know the cause of death of the two deceased. The two appellants failed to explain in their statements recorded under section 313 Cr.P.C., the death of infant child, namely, Raj Kumar in their house in suspicious circumstances. The trial court was absolutely right in coming to the conclusion that as to how it was possible that the infant child, who was living with his mother deceased Smt. Vidya died on the same date and time when deceased Smt. Vidya died and he was also suffering from ailment like his mother as has been stated by P.W. 1 in his cross examination before the trial court. The nature of ailment and any medical treatment given to him for the same has also not been brought on record which goes to show that P.W. 1 was won over by the accused appellants at the time of his cross examination which was recorded after more than one month of his examination-in-chief in order to save the accused-appellants. Since the suspicious and unnatural death of the deceased Raj Kumar had taken place in the house which was shared by the two appellants, hence as per requirement of Section 106 of the Evidence Act, they were required to give plausible and convincing explanation about the circumstances in which the deceased Raj Kumar died in their house. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would be 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 the case of Trimukh Maroti Kirkan vs. State of Maharashtra (2006) 10 SCC 681, the Apex Court whilst applying provision of Section 106 of the Indian Evidence Act, observed in paras 13 to 14 as under:''13. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighborhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.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."28. On the interpretation of Section 106 of the Indian Evidence Act, 1872 we may refer to the classic case of Shambhu Nath Mehra Vs. State of Ajmer 1956 SCR 199 reported more than half a century ago. In paragraph-11 their Lordships have observed thus:"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

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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."29. In the case of State of West Bengal Vs. Mir Mohammad Omar and others 2000 (8) SCC 382, the Apex Court has observed in paras 31 to 33 as under:31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty.32. In this case, when the prosecution succeeded in establishing the afore narrated circumstances, the Court has to presume the existence of certain facts. Presumption is a course recognized by the law for the court to rely on in conditions such as this.33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case."30. In view of the settled proposition of the law with regard to burden to be discharged by an accused under section 106 of the Evidence Act and taking into account the fact that in the instant case, the appellants, who are father-in-law and brother-in-law of deceased Smt. Vidya were living in the same house along with Aniruddha-husband of the deceased Smt. Vidya where the deceased Smt. Vidya along with her infant child Raj Kumar died unnatural death in suspicious circumstances and they were found in the house on the date and time of incident and they have failed to explain the death of deceased Raj Kumar, who was infant child deceased Smt. Vidya, hence the conviction and sentence of the appellants for the murder of deceased Raj Kumar by the trial court under section 302/34 is fully justified and does not require any interference by this Court as the same does not suffer from any manifest error on fact and law and the prosecution has proved its case beyond reasonable doubt against the appellants, the conviction and sentence of the appellants by the trial court for the offence under section 302/34 I.P.C. with which they have been also charged is hereby upheld.31. As it has been discussed above, that the conviction and sentence of the appellants for the death of deceased Smt. Vidya, by the trial court under sections 498-A, 304-B, 201 I.P.C. does not suffer from any infirmity and illegality, the conviction and sentence of the appellants by the trial court for the murder of deceased Smt. Vidya is also hereby upheld.32. Both the appeals lack merit and are accordingly, dismissed.33. The appellants are stated to be in jail. They shall serve out the sentence awarded by the trial court.34. Let the lower court record along with a copy of this order be transmitted to the trial court concerned for necessary information and follow up action, if any.
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