# Badam Singh v. State of U.P

- **Citation:** (2022) 12 ILRA 186
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-14
- **Case number:** Criminal Appeal No. 4147 of 2016
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/badam-singh-v-state-of-u-p-47999
- **Pages:** 12

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,1860-
Sections

302
-
Challenge
to-Conviction-deceased
had
died in her matrimonial home within
seven years of marriage- the cause of
death was found to be ante mortem
hanging- PW-1, PW-2 and PW-3 stated
without any hesitation that the deceased
died
in
her
matrimonial
home-The
evidence of PW-7, PW-8 and PW-9 also
corroborates this fact that on information
of the incident when police reached the
matrimonial home of the deceased the
dead body of the deceased was found at
the place -the witnesses of fact, PW-2,
PW-3,
PW-4
and
PW-5
are
hostile
witnesses
and
do
not
support
the
prosecution
case-no
cogent
evidence
adduced by the prosecution to prove
entire chain of circumstances which may
compel court to arrive at conclusion that
accused
only
had committed
alleged
crime- ingredients of Section 304-B are
not attracted as there was no quarrel or
demand of dowry soon before her deathTherefore on the aforesaid circumstances,
the trial court found that it was a case of
murder punishable under Section 302 IPC
based
on
circumstantial
evidence-
Prosecution had miserably failed to prove
entire chain of circumstances which would
unerringly conclude that alleged act was
committed by the accused only and none
else- Section 106 is not intended to relieve
the prosecution from discharging its duty
to prove
the guilt of accused- the
prosecution has not been able to establish
the guilt of the accused appellant under
12 All. Badam Singh Vs. State of U.P.
187
Section
302
IPC
beyond
reasonable
doubt.(Para 1 to 46)

B. It is well settled that Section 106 of the
Evidence Act does not directly operate
against either a husband or wife staying
under the same roof and being the last
person seen with the deceased. Section
106 of the Evidence Act does not absolve
the prosecution of discharging its primary
burden of proving the prosecution case
beyond reasonable doubt. It is only when
the prosecution has led evidence which, if
believed, will sustain a conviction, or
which makes out a prima facie case, that
the question arises of considering facts of
which the burden of proof would lie upon
the accused.(Para 37)
The appeal is allowed. (E-6)

List of Cases cited:

## Text

186 INDIAN LAW REPORTS ALLAHABAD SERIES
not offer any cogent explanation that they
have not committed the murder of deceased
Asha Devi. The appellant failed to
discharge her burden as cast upon her u/s
106 of the Evidence Act, 1872. All this
evidence indicates that appellant Vidya
Devi along with the other co-accused is the
author of the crime and she committed the
murder of her daughter-in-law Asha Devi.
The prosecution has succeeded to bring
home the charge against the appellant u/s
302/34 and 201 IPC beyond a reasonable
doubt. The trial court has rightly convicted
and sentenced the appellant Vidya Devi.
Therefore, the impugned judgment and
order of the trial court do not require any
interference and are liable to be affirmed.

ORDER

45. The criminal appeal is accordingly
dismissed.

46. The Appellant is on bail. Her
personal bonds and surety bonds are
cancelled. She be taken into custody
forthwith and be sent to jail to serve out the
remaining part of the sentence.

47. Let the certified copy of this order
be transmitted to the trial court for
compliance.

48. The lower Court record be also
transmitted to the court concerned.
----------
(2022) 12 ILRA 186
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.12.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.
Criminal Appeal No. 4147 of 2016

Badam Singh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Apul Misra, Sri Akhilesh Singh, Sri Satya
Pal Singh

Counsel for the Respondent:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,1860-
Sections

302
-
Challenge
to-Conviction-deceased
had
died in her matrimonial home within
seven years of marriage- the cause of
death was found to be ante mortem
hanging- PW-1, PW-2 and PW-3 stated
without any hesitation that the deceased
died
in
her
matrimonial
home-The
evidence of PW-7, PW-8 and PW-9 also
corroborates this fact that on information
of the incident when police reached the
matrimonial home of the deceased the
dead body of the deceased was found at
the place -the witnesses of fact, PW-2,
PW-3,
PW-4
and
PW-5
are
hostile
witnesses
and
do
not
support
the
prosecution
case-no
cogent
evidence
adduced by the prosecution to prove
entire chain of circumstances which may
compel court to arrive at conclusion that
accused
only
had committed
alleged
crime- ingredients of Section 304-B are
not attracted as there was no quarrel or
demand of dowry soon before her deathTherefore on the aforesaid circumstances,
the trial court found that it was a case of
murder punishable under Section 302 IPC
based
on
circumstantial
evidence-
Prosecution had miserably failed to prove
entire chain of circumstances which would
unerringly conclude that alleged act was
committed by the accused only and none
else- Section 106 is not intended to relieve
the prosecution from discharging its duty
to prove
the guilt of accused- the
prosecution has not been able to establish
the guilt of the accused appellant under
12 All. Badam Singh Vs. State of U.P.
187
Section
302
IPC
beyond
reasonable
doubt.(Para 1 to 46)

B. It is well settled that Section 106 of the
Evidence Act does not directly operate
against either a husband or wife staying
under the same roof and being the last
person seen with the deceased. Section
106 of the Evidence Act does not absolve
the prosecution of discharging its primary
burden of proving the prosecution case
beyond reasonable doubt. It is only when
the prosecution has led evidence which, if
believed, will sustain a conviction, or
which makes out a prima facie case, that
the question arises of considering facts of
which the burden of proof would lie upon
the accused.(Para 37)
The appeal is allowed. (E-6)

List of Cases cited:

1. Suchand Pal Vs Phani Pal (2004) SCC (Cri)
220

2. Shivaji Chintappa Patil Vs St. Of Mah. (2021)
5 SC 626

3. Balaji Gunthu Dhule Vs St. of Mah. (2012) 11
SCC 685

4. Nagendra Shah Vs St. of Bih. (2021) 10 SCC
725

5. Satye Singh & anr. Vs St. of U.K. (2022) 5
SCC 438

6. St. of Raj. Vs Kashi Ram (2006) 12 SCC 254

7. Ranjit Kumar Haldar Vs St. of Sikkim (2019) 7
SCC 684

8. Uniworth Textiles Ltd. Vs CCE (2013) 9 SCC
753

9. Dharam Deo Yadav Vs St. of U.P. (2014) 5
SCC 509

10. Ashok Debbarma Vs St. of Tripura (2014) 4
SCC 747

11. Raja Vs St. of Haryana (2015) 11 SCC 43
12. St. of U.P. Vs Ravindra Prakash Mittal (Dr)
(1992) 3 SCC 300

13. Kamesh Panjiyar Vs St. of Bih. (2005) 2 SCC
388

14. Kashmir Kaur Vs St. of Punj. (2012) 13 SCC
627

15. Baljinder Kaur Vs St. of Punj. (2015) 2 SCC
629

16. Kans Raj Vs St. of Punj. (2000) 5 SCC 207

17. Rajbir Vs St. of Har. (2010) 15 SCC 116 :
(2013) 2 SCC (Cri) 149 : AIR 2011 SC 568

18. Jasvinder Saini & ors.Vs St. (Govt of NCT of
Delhi) (2013) 7 SCC 256

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. The accused-appellant Badam
Singh was convicted under Section 302 of
IPC and sentenced for life imprisonment
with fine of Rs.50,000/- with the stipulation
of default clause vide judgment and order
dated 28.7.2016 passed by the Sessions
Judge, Budaun in Sessions Trial No. 666 of
2015 (State Vs. Badam Singh) arising out
of Case Crime No.361 of 2015, Police
Station- Zarif Nagar, District- Budaun.
Feeling aggrieved with the same, accused
appellant has preferred this appeal.

2. The brief facts culled out from the
record are that on the basis of a written
report submitted by the complainant at
Police
Station-
Zarifnagar,
District-
Budaun, a Case Crime No.0361 of 2015
was registered in which averments were
made that Ram Bholi, daughter of the
complainant, was married to Badam Singh
son of Chhote Lal (accused-appellant) as
per hindu rites and rituals. After few days
of the marriage, a demand of motorcycle
and buffalo was raised as additional dowry.
188 INDIAN LAW REPORTS ALLAHABAD SERIES
The said demand was told to the informant
by her daughter. When the informant
inquired
about
the
said demand
of
additional dowry from the in-laws of her
daughter, they stated that if the informant
fails to give the Motorcycle & Buffalo, he
would get his daughter back. On 6.7.2015,
Badam Singh, Devendra and Chhatrapal
sons of Chhote Lal, Rupa wife of Chhote
Lal and Km. Santosh all the accused
persons strangled her to death. This
information was given telephonically to the
informant by Ompal son of Balister,
resident
of
Dariyapur,
police
station
Mujriya, who lodged the F.I.R..

3. In pursuance of the aforesaid first
information report, Investigating Officer,
Umesh Kumar Yadav, Circle Officer,
Sahaswan,
Budaun,
took
up
the
investigation and visited the spot. Site-plan
was prepared and inquest report was also
prepared. The body of the deceased was
sent for post mortem. Concerned doctor
performed the autopsy and prepared the
post mortem report. I.O. recorded the
statements of witnesses. After completing
the investigation, I.O. submitted charge
sheet against accused appellant. The matter
being triable by Court of Sessions was
committed to the Court of Sessions for
trial.

4. The learned trial court framed
charges against the accused under Section
304-B,
498-A
IPC
and
3⁄4
Dowry
Prohibition Act. Alternative charge under
Sections 302 IPC was also framed. The
accused-person pleaded not guilty and
wanted to be tried. The prosecution so as to
bring home the charges, examined the
following witnesses:-

1.
Sonpal
PW-1-informant (father of the
deceased)
2.
Amrita

PW-2 (mother of the deceased)
3.
Sunita

PW-3
(sister-in-law
of
the
deceased (bhabhi)
4.
Tajpal
Singh

PW-4 (brother of the deceased)
5.
Gayatri

PW-5 (sister of the deceased)
6.
Dr.
Rajesh
Kumar Verma

PW-6
(who
performed
the
autopsy on the body of the
deceased)
7.
Nanak
Singh

PW-7 (who conducted inquest
8.
Head constable
Rajpal
Singh

PW-8 (scribe of F.I.R.)
9.
Umesh Kumar
Yadav

PW-9 (Investigating Officer)

5. In support of oral version,
following documents were filed and proved
on behalf of the prosecution:

1.
Written report
Ext. Ka-1
2.
Post mortem report
Ext. Ka-
3.
Inquest report
Ext. Ka-
4.
Photo lash
Ext. Ka-
5.
Specimen seal
Ext. Ka-
6.
Challan lash
Ext. Ka-
7.
Challan lash
Ext. Ka-
8.
First Information Report
Ext. Ka-
9.
Copy of G.D.
Ext. Ka-
10.
Site plan
Ext. Ka-
11.
Charge sheet
Ext. Ka-

6. After completion of prosecution
evidence,
incriminating
circumstances
emanating from the prosecution evidence
were put to the accused. In his statement
recorded under Section 313 CrPC, he
12 All. Badam Singh Vs. State of U.P.
189
denied his involvement in the incident and
pleaded false implication on account of
enmity.

7. Heard Shri Akhilesh Singh assisted
by Shri Satya Pal Singh, learned counsel
for the appellant and Shri Patanjali Mishra,
learned AGA for the State and perused the
record.

8. Learned counsel for the appellant
submitted that appellant has been falsely
implicated in this case. It is further
submitted that all the witnesses of fact have
turned hostile and on the basis of analysis
of their evidence, no guilt against the
accused
appellant
is
established
and
proved. It is further submitted that to prove
a case under Section 302 IPC, the burden
lies upon the prosecution. In the present
matter,
the
case
was
based
on
circumstantial
evidence
and
no
circumstance
was
proved
by
the
prosecution
to
connect
the
accused
appellant with the alleged offence of
murder. The learned trial court has wrongly
recorded the conviction on the basis of
provisions of Section 106 Evidence Act,
which under law, was not permissible in the
circumstances of present case. Motive of
crime is not proved. The findings recorded
by the trial court in the impugned judgment
are
illegal
and
perverse
warranting
interference by this Court.

9. Learned AGA for the State
vehemently opposed the submissions made
on behalf of the appellant and submitted that
the death of the deceased had taken place in
her matrimonial home and injuries were also
found on her body, which are mentioned as
ante mortem injuries in post mortem report. It
means that due to injuries sustained by her,
she died. It is also submitted that testimony of
hostile witnesses can also be relied upon to
the extent it supports the prosecution case.
Learned trial court has rightly convicted the
appellant under Section 302 IPC and
sentenced accordingly. There is no force in
this appeal and the same may be dismissed.

10. At the very outset, it is found that
the appellant has been acquitted under
Sections 304-B, 498-A IPC and 3⁄4 D.P. Act
but has been convicted under Section 302
IPC. The learned trial court has mentioned
certain circumstances indicating the guilt of
the appellant and has come to the conclusion
that
since
no
explanation
of
these
circumstances has been offered by the
appellant, his conviction can be recorded
under Section 302 IPC. The trial court has
found that it was a case based on
circumstantial evidence and there was no eye
witness account.

11. Charge against the accused was
framed on 10.12.2015 under Sections 304-B,
498-A IPC and 3/4 D.P. Act and in alternative
under Section 302 IPC.

12. In Rajbir vs. State of Haryana,
(2010) 15 SCC 116, the Hon'ble Supreme
Court directed to ordinarily add Section 302
IPC to the charge of Section 304-B IPC so
that death sentences can be imposed in such
heinous and barbaric crime against women.
However, subsequently the direction issued in
the case of Rajbir case (supra) was explained
by the Hon'ble Apex Court in Jasvinder
Saini and others vs. State (Government of
NCT of Delhi), (2013) 7 Supreme Court
Cases 256. It was held that mechanical
addition of charge under Section 302 IPC
when evidence prima facie did not support
the case of murder was unsustainable. It was
further held that :

"15. It is common ground that a
charge under Section 304-B IPC is not a
190 INDIAN LAW REPORTS ALLAHABAD SERIES
substitute
for
a
charge
of
murder
punishable under Section 302. As in the
case of murder in every case under Section
304-B also there is a death involved. The
question whether it is murder punishable
under Section 302 IPC or a dowry death
punishable under Section 304-B IPC
depends upon the fact situation and the
evidence in the case. If there is evidence
whether direct or circumstantial to prima
facie support a charge under Section 302
IPC the trial court can and indeed ought to
frame a charge of murder punishable under
Section 302 IPC, which would then be the
main charge and not an alternative charge
as is erroneously assumed in some
quarters. If the main charge of murder is
not proved against the accused at the trial,
the court can look into the evidence to
determine whether the alternative charge of
dowry death punishable under Section 304B
is
established.
The
ingredients
constituting the two offences are different,
thereby
demanding
appreciation
of
evidence from the perspective relevant to
such ingredients. The trial court in that
view of the matter acted mechanically for it
framed an additional charge under Section
302 IPC without adverting to the evidence
adduced in the case and simply on the basis
of the direction issued in Rajbir case
[Rajbir v. State of Haryana, (2010) 15
SCC 116 : (2013) 2 SCC (Cri) 149 : AIR
2011 SC 568] . The High Court no doubt
made a half-hearted attempt to justify the
framing of the charge independent of the
directions in Rajbir case [Rajbir v. State of
Haryana, (2010) 15 SCC 116 : (2013) 2
SCC (Cri) 149 : AIR 2011 SC 568] , but it
would have been more appropriate to remit
the matter back to the trial court for fresh
orders rather than lending support to it in
the manner done by the High Court."

It was also held that :

"14. Be that as it may, the
common thread running through both the
orders is that this Court had in Rajbir case
[Rajbir v. State of Haryana, (2010) 15
SCC 116 : (2013) 2 SCC (Cri) 149 : AIR
2011 SC 568] directed the addition of a
charge under Section 302 IPC to every case
in which the accused are charged with
Section 304-B. That was not, in our
opinion, the true purport of the order
passed by this Court. The direction was not
meant to be followed mechanically and
without due regard to the nature of the
evidence available in the case. All that this
Court meant to say was that in a case
where a charge alleging dowry death is
framed, a charge under Section 302 can
also be framed if the evidence otherwise
permits. No other meaning could be
deduced from the order of this Court."

13. We find that during course of
investigation, no evidence of Section 302
IPC was collected by the Investigating
Officer and that is why charge sheet was
filed under Sections 304-B, 498-A IPC and
3/4 D.P. Act and not under Section 302
IPC. However, the additional charge under
Section 302 IPC was initially framed and
the trial started.

14. On the basis of evidence on record
and especially of the prosecution witnesses,
who were the family members of the
deceased, the trial court gave a categorical
finding that no offence under Sections 304B, 498-A IPC and 3⁄4 D.P. Act is made out.

15. The conditions required to be
proved to bring home a charge under
Section 304-B IPC are very well settled in
a catena of decisions of the Hon'ble
Supreme Court as well as of this Court, like
: Kamesh Panjiyar Vs. State of Bihar,
(2005) 2 SCC 388, Kashmir Kaur Vs. State
12 All. Badam Singh Vs. State of U.P.
191
of Punjab, (2012) 13 SCC 627 and
Baljinder Kaur vs. State of Punjab, (2015)
2 SCC 629. In Kans Raj vs. State of
Punjab, (2000) 5 SCC 207, the ingredients
of Section 304-B IPC have been reiterated,
which are as under :

(a) Death of a woman occurring
otherwise
than
under
normal
circumstances;

(b) Death was occurred within 7
years of her marriage;

(c) The deceased was subjected to
cruelty or harassment by her husband or by
any relative of her husband;

(d) Such cruelty or harassment
should be for or in connection with the
demand of dowry; and

(e) To such cruelty or harassment
the deceased should have been subjected to
soon before her death.

16. The learned trial court has opined
that the factum of the death of the deceased
within seven years of her marriage and
causing of death otherwise than under normal
circumstances are the two ingredients, which
are not disputed. So far as the fact of cruelty
and harassment of the deceased by her
husband or any relative of her husband for, or
in connection with any demand for dowry, is
concerned, the learned trial court has
concluded that none of the witnesses of fact
narrated even a single word in respect of the
said allegations. It also transpires from a
perusal of the statement of witnesses of fact
that the element of ''soon before' has also not
been proved. Hence, it was simply clear
before the trial court that the ingredients to
bring home a charge under Section 304-B
IPC were not fully established. It is desirable
to add here that in case the aforesaid
ingredients were proved by the prosecution,
the Court would have presumed that the
accused had caused the dowry death of the
deceased. Since the ingredients of the said
offence and especially the element of ''soon
before' were missing, the prosecution was not
in a position to take the benefit of
presumption clause given under Section 113B of the Evidence Act and the burden did not
shift upon the accused but it remained over
the prosecution.

17. The trial court held that the
deceased had died in her matrimonial home.
In the Autopsy Report marks of injury have
been found over the neck of the deceased and
the cause of death was found to be ante
mortem hanging. Considering the aforesaid
grounds, the learned trial court found that it
was a case of murder punishable under
Section 302 IPC based on circumstantial
evidence.

18. What is required in a case based on
circumstantial evidence has been discussed
and clarified so many times. The law on the
subject is well settled.

19. In State of U.P. v. Ravindra
Prakash Mittal (Dr), (1992) 3 SCC 300, the
Hon'ble Apex Court has held:

"20. .........There is a series of
decisions of this Court so eloquently and
ardently propounding the cardinal principle
to be followed in cases in which the evidence
is purely of circumstantial nature. We think, it
is not necessary to recapitulate all those
decisions except stating that the essential
ingredients to prove guilt of an accused
person by circumstantial evidence are:

(1) The circumstances from which
the conclusion is drawn should be fully
proved;

(2) the circumstances should be
conclusive in nature;

(3) all the facts so established
should
be
consistent
only
with
the
192 INDIAN LAW REPORTS ALLAHABAD SERIES
hypothesis of guilt and inconsistent with
innocence;

(4) the circumstances should, to a
moral certainty, exclude the possibility of
guilt of any person other than the accused."

20. In Raja v. State of Haryana,
(2015) 11 SCC 43, it was held that the
Court is required to evaluate circumstantial
evidence to see that chain of events has
been established clearly and completely to
rule out any reasonable likelihood of
innocence of accused; whether chain is
complete or not, would depend on facts of
each case emanating from evidence and no
universal yardstick should be fixed.

21.

We
find
that
several
circumstances have been discussed by the
learned trial court relating to the murder of
the deceased.

22. The first circumstance is that the
death of the deceased occurred in her
matrimonial home. PW-1, PW-2 and PW-3 in
their depositions stated without any hesitation
that the deceased died in her matrimonial
home. The inquest report Ext. ka-3 and the
testimonies of PW-7 and PW-9 also indicate
the same fact. The site plan Ext. ka-10 is
another piece of evidence to ascertain the
place of death of the deceased and dead body
has been shown lying at letter ''B', which is
the room of the accused. The main place of
occurrence has been shown by letter ''A',
which is the room of the accused. The
evidence of PW-7, PW-8 and PW-9 also
corroborates this fact that on information of
the incident when police reached the
matrimonial home of the deceased the dead
body of the deceased was found at the place
shown as letter ''B'. PW-1, PW-2 and PW-3
have also stated that when they reached the
matrimonial house of the deceased, they saw
the dead body lying there.

23. The learned counsel for the
appellant has submitted that even if it is
assumed that death of the deceased was
caused in suspicious circumstances, this
fact is not to be ignored that in a case rest
upon circumstantial evidence the burden of
proof always lies upon the prosecution. It
has been vehemently argued that the last
seen theory has a significant role to bring
home the charge against the accused in a
case based on circumstantial evidence and
in the present case there is no witness to
depose that at any point of time, at the time
or shortly before the death of the deceased
anyone saw the accused appellant with the
deceased and that is the major dent in the
prosecution case.

24. In the light of the aforesaid
submissions, we have thoroughly examined
the oral evidence on record. As pointed out
earlier, the witnesses of fact, PW-2, PW-3,
PW-4 and PW-5 are hostile witnesses and
do not support the prosecution case.

25. PW-1, the father of the deceased,
no where in his evidence states that at the
time of occurrence deceased was seen by
anyone in the company of the accused.
Even in his cross-examination a denial has
been made by him in respect of affidavit
given by him to Superintendent of Police,
Budaun alleging therein the guilt of the
present accused appellant. In the aforesaid
circumstances it can be concluded, on the
basis of evidence on record, that the last
seen theory is not proved against the
present accused appellant. We are afraid
that only on the basis of this fact that the
body of the deceased was found in her
matrimonial home, although this fact was
also contradicted by the family members of
the deceased in their testimonies as they
stated that the dead body was found in
Jungle, and absconding of the accused, we
12 All. Badam Singh Vs. State of U.P.
193
are compelled to draw a definite conclusion
that it was the accused appellant who was
the author of the crime. According to the
depositions of the witnesses of fact the
accused appellant had informed them
regarding the incident. In the absence of
definite evidence on the point that at the
time of the occurrence the accused was
present in his house, it could not be held
that the accused has murdered his own
wife. It is true that in his statement under
Section 313 CrPC the accused has not
made any clear averment as to where he
was present at the time of occurrence, but
since there was no evidence against him to
implicate him in the present crime he was
not under obligation to disclose his
presence at the time of incident. A plea of
innocence and false implication on account
of enmity has been taken by him in his
statement under Section 313 CrPC.

26. The attention of the Court is drawn
towards the verdict of Hon'ble Supreme
Court in Ashok Debbarma vs. State of
Tripura, (2014) 4 SCC 747 wherein it was
held that Section 313 CrPC statements solely
by themselves are not enough for conviction,
but can be used for corroboration along with
other evidence for conviction. In the light of
the aforesaid case law, we are unable to find
any other evidence to which the statement of
accused
under
Section
313
CrPC
corroborates. In Dharam Deo Yadav vs.
State of U.P., (2014) 5 SCC 509, it has been
held that "normally the last seen theory
comes into play when the time gap between
the point of time when the accused and
deceased were seen last alive and when the
deceased is found dead, is so small that
possibility of any person other than the
accused being the perpetrator of the crime
becomes impossible. It will be difficult in
some cases to positively establish that the
deceased was last seen with the accused
when there is a long gap and possibility of
other persons coming in between exists.
However, if the prosecution, on the basis of
reliable evidence, establishes that the missing
person was seen in the company of the
accused and was never seen thereafter, as in
the present case, it is obligatory on the part of
the accused to explain the circumstances in
which the missing person and the accused
parted company. In such a situation, the
proximity of time between the event of last
seen together and the recovery of the dead
body or the skeleton, as the case may be, may
not be of much consequence".

27. So far as the present case is
concerned, we have noticed that there is no
evidence on record in respect of last seen
theory.

28. In fact burden of proving
malafides lies on the shoulders the one who
is alleging it, as provided under Section
101 of the Evidence Act and also held in
Uniworth Textiles Ltd. Vs. CCE, (2013) 9
SCC 753.

29. We take notice of the fact that the
conviction in the present case has been
recorded on the basis of Section 106 of the
Evidence Act.

30. In Ranjit Kumar Haldar vs.
State of Sikkim, (2019) 7 SCC 684 it was
held that general rule is that burden of
proof is on prosecution. However, Section
106
was
introduced
not
to
relieve
prosecution of their duty, but it is designed
to meet situation, in which it would be
impossible or difficult for prosecution to
establish facts which are especially within
the knowledge of accused.

31. Section 106, Evidence Act
provides that "when any fact is especially
194 INDIAN LAW REPORTS ALLAHABAD SERIES
within the knowledge of any person, the
burden of proving that fact is upon him".

32. In State of Rajasthan vs. Kashi
Ram, (2006) 12 SCC 254 it was
pronounced that the provisions of Section
106 of the Evidence Act itself are
unambiguous and categoric in laying down
that when any fact is especially within the
knowledge of a person, the burden of
proving that fact is upon him. Thus, if a
person is last seen with the deceased, he
must offer any explanation as to how and
when
he
parted
company
with
the
deceased. He must furnish an explanation
which appears to the Court to be probable
and satisfactory. If he does so he must be
held to have discharged his burden. If he
fails to offer an explanation on the basis of
facts within his special knowledge, he fails
to discharge the burden cast upon him by
Section 106 of the Evidence Act.

33. In Satye Singh and another vs.
State of Uttarakhand, (2022) 5 SCC 438
it was held that Section 106 Evidence Act
is not intended to relieve prosecution from
discharging its duty to prove guilt of
accused. Prosecution must discharge its
primary onus of proof to establish basic
facts against the accused in accordance
with law only thereafter may Section 106
be invoked to, depending on the facts and
circumstances of each case.

34. In Nagendra Shah vs. State of
Bihar, (2021) 10 SCC 725 it was reiterated
that "when there is failure on the part of the
accused to offer reasonable explanation in
discharge of burden placed on him by
virtue of Section 106 when case rests on
circumstantial
evidence,
if
chain
of
circumstances,
which
require
to
be
established
by
prosecution,
is
not
established the failure of the accused to
discharge the burden under Section 106 of
the Evidence Act, is not relevant at all,
when the chain is not complete, falsity of
the defence is no ground to convict the
accused." Needless to say that in the instant
case the circumstances established by the
prosecution do not lead to one and only
possible inference regarding guilt of the
accused appellant.

35. In the aforesaid circumstances,
what survives for our consideration is only
the opinion of the medical practitioner who
conducted the autopsy and gave a report on
the cause of the death. In this factual
scenario, as held in Balaji Gunthu Dhule
vs. State of Maharashtra, (2012) 11 SCC
685, only on the basis of post mortem
report the appellant could not have been
convicted of the offence punishable under
Section 302 IPC.

36. In the case in hand we find that no
circumstance, except that the body of the
deceased was found in the house of the
accused and it was an unnatural death, was
proved by the prosecution. Learned AGA
has also pointed out that some injuries have
been found on the body of the deceased.

37. In the backdrop of the aforesaid
circumstances, we have to mention at the
cost of repetition that no one has seen the
accused with the deceased at the time of the
occurrence or a little before the occurrence
and last seen theory is also not available to
the prosecution. In these circumstances, we
can safely rely upon Shivaji Chintappa
Patil vs The State Of Maharashtra,
(2021) 5 SC 626, wherein the Hon'ble
Apex Court held that it is well settled that
Section 106 of the Evidence Act does not
directly operate against either a husband or
wife staying under the same roof and being
the last person seen with the deceased.
12 All. Badam Singh Vs. State of U.P.
195
Section 106 of the Evidence Act does not
absolve the prosecution of discharging its
primary burden of proving the prosecution
case beyond reasonable doubt. It is only
when the prosecution has led evidence
which,
if
believed,
will
sustain
a
conviction, or which makes out a prima
facie case, that the question arises of
considering facts of which the burden of
proof would lie upon the accused.

38. We have no hesitation to hold that
the circumstances pointed out by the
learned trial court, are not sufficient to say
that the prosecution has discharged its
primary burden of proving its case beyond
reasonable doubt. In these circumstances,
we are of the view that it was not proper for
the trial court to convict the accused
appellant with the aid of Section 106
Evidence Act when the prosecution had
miserably failed to discharge its primary
burden of proof. At the same time we doubt
that merely absconding of accused from the
place of occurrence is a sufficient proof to
prove the guilt of the accused.

39. In Satye Singh case (supra) it was
reiterated that conviction can be based
solely on circumstantial evidence but it
should be tested on the touchstone of law
relating to circumstantial evidence that all
the circumstances must lead to the
conclusion that the accused is the only one
who has committed the crime and none
else. Further held in the facts and
circumstances of the aforesaid matter that
circumstances howsoever strong cannot
take place of proof and that guilt of accused
have to be proved by the prosecution
beyond reasonable doubt.

40. Learned AGA has submitted that
since the occurrence has taken place in the
closed precincts of the house of the
deceased where accused and deceased were
living together, hence, this is the duty of the
accused appellant to explain that under
what circumstances death of the deceased
was caused. In this reference, we take note
of the statement of the doctor PW-6, who in
his examination-in-chief has stated that the
death of the deceased would have been
caused about two days before the post
mortem. The autopsy of the deceased was
performed on 8.7.2015 at 2.00 p.m.. If we
rely upon the statement of the doctor - PW6, the death of the deceased would have
been caused on 6.7.2015 in the afternoon. It
was not the night when the appellant's
presence in his house could be naturally
presumed. Even if we assume that in the
house of the appellant the deceased and
appellant were the only residents, it does
not ecessarily mean that throughout the day
and night the accused appellant happened
to be present in his house. It is true that the
accused appellant had not stated in his
statement under Section 313 CrPC that at
the time of occurrence he was not present
in his house but, as we have discussed
earlier, since the prosecution had failed to
prove its case prima facie, no liability may
be thrown upon the accused appellant to
explain the circumstances under Section
106 Evidence Act, particularly, in the
absence of evidence of last seen.

41. The cause and manner of death of
the deceased is another circumstance where
the trial court strongly hits. The learned
trial court has discussed that death was not
caused by hanging, as stated by the doctor
PW-6 rather it was a case of strangulation.
He has discussed the various features in
respect of death caused by hanging and
death caused by strangulation. It has been
pointed out that in the inquest report the
panchas have also opined that the death of
the deceased was caused by strangulation.
196 INDIAN LAW REPORTS ALLAHABAD SERIES
The learned trial court has also highlighted
this fact that one contusion over the neck of
the deceased and one over her back have
been found by the panchas while inspecting
the injuries of the deceased. The learned
trial court has opined that the broken
bangle of the deceased shows that she had
made
protest
while
she
was
being
strangulated and in the course of her protest
probably her bangle was broken and she
also got injury over her back. We do not
find any cogent reasoning in the finding of
the learned trial court in this regard. The
doctor - PW-6 has categorically stated that
the death was caused due to ante mortem
hanging and has also opined that the death
was not caused by strangulation. The
learned trial court replaced its view over
the medical / expert evidence without any
cogent
reasoning,
which
was
not
permissible, especially in a case where no
eye witness account exists.

42. In the facts and circumstances of
the case and on the basis of aforesaid
discussions and relying upon the relevant
laws on the subject, we do not concur with
the findings of the learned trial court
recorded in the impugned judgment and
order. The prosecution has failed to prove
its case prima facie to be enabled to take
shelter of Section 106 Evidence Act and to
shift the onus of proof upon the defence.
The case rests upon circumstantial evidence
and chain of circumstances is not complete.
The learned trial court has itself held that
there was no demand of dowry or
harassment and cruelty to the deceased and
in these circumstances we also find that
there was a total absence of motive for the
accused appellant to kill his own wife. If
the relations between the spouse were not
strained and there was no cruelty or
demand of dowry what provoked the
accused appellant for the murder of his
wife, is not clear from the perusal of the
entire impugned judgment. The theory of
last seen is completely missing. The
impugned judgment has been passed only
on the basis of suspicion, conjectures and
surmises. The legal position is well settled
and reiterated many times that suspicion
howsoever strong cannot take place of
proof.

43. Prosecution had miserably failed
to prove entire chain of circumstances
which would unerringly conclude that
alleged act was committed by the accused
only and none else. Section 106 is not
intended to relieve the prosecution from
discharging its duty to prove the guilt of
accused. Prosecution having failed to prove
basic facts as alleged against the accused,
burden could not be shifted on accused by
pressing
into
service
the
provisions
contained in section 106 of Evidence Act.
There being no cogent evidence adduced
by the prosecution to prove entire chain of
circumstances which may compel court to
arrive at conclusion that accused only had
committed alleged crime.

44. In Suchand Pal vs. Phani Pal,
2004 SCC (Cri) 220, the Hon'ble Supreme
Court held that if from the evidence on
record and in the facts and circumstances of
the case two views are possible, one
pointing to the innocence of the accused
and other to the guilt of the accused, the
view which favours the accused should be
preferred.

45. Upon careful analysis and
consideration of the settled legal position in
the backdrop of the facts and circumstances
of the the present case, we are of the
opinion that the conclusion given by the
learned trial court in the impugned
judgment and order is not in accordance
12 All. Rakesh & Ors. Vs. State of U.P.
197
with law and the evidence available on
record. Thus, this Court is of the view that
the prosecution has not been able to
establish the guilt of the accused appellant
under Section 302 IPC beyond reasonable
doubt and to the satisfaction of the judicial
conscience of the Court. Therefore, the
Court is inclined to grant benefit of doubt
to the accused appellant on the ground of
rule of caution.

46. Hence, the impugned judgment
and order of conviction and sentence,
which has been sought to be assailed, call
for and deserves interference. The criminal
appeal is liable to be allowed and the same
is accordingly allowed.

47. The impugned judgement and
order dated 28.7.2016 is set aside. The
accused appellant is found not guilty for
the offence punishable under Section 302
IPC. He is acquitted from the charge.
Accused appellant is in jail. He should be
released forthwith, if not wanted in any
other case.

48. Let a copy of this judgment along
with trial court record be sent to the Court
 concerned, Budaun for compliance.
----------
(2022) 12 ILRA 197
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 5332 of 2011

Rakesh & Ors. ...Appellants
Versus
State of U.P. ...Respondent
Counsel for the Appellants:
Sri B.N. Rai, Sri Adarsh Kumar, Sri Ganesh
Mani Tripathi

Counsel for the Respondent:
Govt. Advocate.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,1860-
Sections

302/34,
498A, 304B IPC - 3/4 D.P. Act, -Challenge
to-Conviction-In the absence of proving
any
fact
regarding
the
demand
of
additional dowry, motive is not proved-It
is also not proved that at the time of
occurrence appellant was inside the house
as he has taken plea that he had gone to
his duty at 9:00 am-In medical evidence
also the time of death is not established.-
The
chain
of
circumstances
is
not
complete
against
the
appellant-
the
prosecution has examined three witnesses
of fact PW1 , PW2 and PW3, All these
witnesses have turned hostile, They have
not supported the prosecution version
rather have deposed in the testimony that
the deceased was not subjected to cruelty
in connection with additional dowry.
Learned trial court has opined that the
ingredients of offence of dowry death are
not proved in this case because no witness
of fact has supported the prosecution case
rather he considered alternative charge of
Section
302
IPC
on
the
basis
of
circumstantial evidence and the provision
of Section 106 of Indian Evidence Act-the
prosecution could not elicit any evidence
which could prove the motive. Hence, the
motive fails. As far as the circumstantial
evidence is concerned, there is no doubt
that conviction can be based on the basis
of circumstantial evidence but it should be
tested on the touchstone of the law
relating to circumstantial evidence. Hence,
the burden could not be shifted on the
appellant u/s 106 of Indian Evidence Act.
Hence, learned trial court has committed a
grave error in convicting and sentencing
the appellant u/s 302 of IPC on the basis
of circumstantial evidence because there
was no circumstantial evidence existed
against the appellant-prosecution has not