# Dharmendra Rajbhar (In Jail) v. State of U.P

- **Citation:** (2021) 1 ILRA 15
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-19
- **Case number:** Criminal Appeal No. 234 of 2017
- **Bench:** Bachchoo Lal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-rajbhar-in-jail-v-state-of-u-p-46766
- **Pages:** 15

## Headnote

Criminal Law - Indian Penal Code,1860-
Section 304 -B , 302- Charges under
Sections 304-B, 498-A IPC and Section 4
Dowry
Prohibition
Act-
Death
by
smothering- Elements of demand of dowry
and
harassment
soon
before
death
lacking - The presumption under Section
113-B of Evidence Act cannot attract and
conviction
under
Section
304-B
IPC
cannot
be
held-
Acquittal
of

the
accused/in-laws of the charges under
Sections 304-B, 498-A IPC and Section 4
Dowry Prohibition Act- Conviction of
husband of deceased under section 302 of
the IPC with recourse of Section 106 of
the Evidence Act- held- unsustainable.

Evidence Law - Indian Evidence Act, 1872
- Section 101, Section 106- Prosecution
has to establish guilt of the accused
filtered
of
all
reasonable
prognosis
favourable to accused to secure conviction
and it is never relieved of its initial duty. It
is only when the initial burden has been
discharged by the prosecution that the
defence of the accused has to be looked
into. Section 106 of the Indian Evidence
Act cannot be applied to fasten guilt on
the accused, even if the prosecution has
failed in its initial burden. Section 106 of
the evidence act has to be read in
conjunction with and not in derogation of
Section 101 Evidence Act. Section 106 of
the Indian Evidence Act does not relieve
prosecution of it's primary and foremost
duty to establish the guilt of the accused
beyond all reasonable doubts independent
of weaknesses of the defence. The fact
required to be proved was "within the
special knowledge of an accused alone"
and prosecution could not have known it
by due care and diligence, that Section
106 can be resorted to by shifting burden
on the accused to disclose that fact which
is "in his special knowledge".

The prosecution is never relieved of its initial
burden to prove its case beyond all reasonable
doubt and the prosecution cannot shift the
burden on the accused, u/s 106 of the Evidence
Act, without discharging its initial burden.
However, where the facts are within the special
knowledge of the accused and cannot be
possibly explained by the prosecution, then the
burden shifts on the accused to explain the said
facts.

Evidence Law - Indian Evidence Act, 1872-
Section 106- The evidence of doctor who
conducted autopsy of deceased, is mere
opinion which is in relation to cause of
death of deceased but it is not indicative
of guilt of appellant. The presence of
appellant at his home at the time of
incident is not established, therefore, his
liability for death cannot be fixed. There is
no any evidence or link to connect the
appellant to the incident i.e. murder of
deceased. Thus, in lack of any such link
which can connect the appellant to the
commission of crime, he cannot be held
guilty of committing the crime only on the
ground that he is husband of deceased.
Death of deceased is not proved to be
caused by hanging and the story as shown
by father-in-law of deceased seems to be
false and his p

## Text

_Characters 0–39,515 of 50,190. This is a partial read: ask again with offset=39515 for what follows._

1 All. Dharmendra Rajbhar Vs. State of U.P.
15
Rajendra Katihar as stated by Faizjuddin PW-4
has not been produced and examined before the
trial court.

52. The conclusion thus comes to be
drawn that the deceased while in an injured
condition was in an unconscious state. There is
no evidence or document on record showing his
condition contrary to that. Thus telling
Shamshuddin PW-3 of the version of the
occurrence as stated by Shahjuddin is a
concoction.

53. In our opinion, the present case is
such in which the benefit of doubt needs to be
extended to the appellant Ram Das. We extend
the benefit of doubt to him and acquit him of
the charges levelled against him.

54. Thus the conviction of the appellant
by the trial court is not sustainable in the eyes of
law. The trial court committed an error in
recording the conviction and sentence of the
appellant. Hence the impugned judgment and
order dated 29.03.2016 passed by the trial court
is liable to be set aside, which is accordingly set
aside.

55. The present appeal is allowed.

56. The appellant Ram Das is in jail. He is
directed to be released forthwith unless wanted
in any other case.

57. Keeping in view the provision of
Section 437-A of The Code of Criminal
Procedure, 1973 the accused-appellant Ram
Das is directed to furnish a personal bond in
terms of Form No. 45 prescribed in The Code
of Criminal Procedure, 1973 of a sum of Rs.
25,000/- with two reliable sureties in the like
amount before the court concerned which shall
be effective for a period of six months along
with an undertaking that in the event of filing of
Special Leave Petition against the instant
judgment or for grant of leave, the aforesaid
appellant on receipt of notice thereof shall
appear before the Apex Court.

58. The lower court record along with a
copy of this judgment be sent back immediately
to the trial court concerned for compliance and
necessary action.

59. The party shall file computer
generated copy of such judgment downloaded
from the official website of High Court
Allahabad
before
the
concerned
Court/Authority/Official.

60. The computer generated copy of such
judgment shall be self-attested by the counsel of
the party concerned.

61.The
concerned
Court/ Authority/
Official shall verify the authenticity of such
computerized copy of the judgment from the
official website of High Court Allahabad and
shall make a declaration of such verification in
writing.
----------

(2021)01ILR A15
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.01.2021

BEFORE

THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE SUBHASH CHANDRA SHARMA, J.

Criminal Appeal No. 234 of 2017

Dharmendra Rajbhar
 ...Accused Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Shamsher Singh, Sri Ravi Ratan Kumar
Sinha,
Swati
Agrawal
Srivastava,
Sri
Virendra Singh
16 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Party:
A.G.A.

Criminal Law - Indian Penal Code,1860-
Section 304 -B , 302- Charges under
Sections 304-B, 498-A IPC and Section 4
Dowry
Prohibition
Act-
Death
by
smothering- Elements of demand of dowry
and
harassment
soon
before
death
lacking - The presumption under Section
113-B of Evidence Act cannot attract and
conviction
under
Section
304-B
IPC
cannot
be
held-
Acquittal
of

the
accused/in-laws of the charges under
Sections 304-B, 498-A IPC and Section 4
Dowry Prohibition Act- Conviction of
husband of deceased under section 302 of
the IPC with recourse of Section 106 of
the Evidence Act- held- unsustainable.

Evidence Law - Indian Evidence Act, 1872
- Section 101, Section 106- Prosecution
has to establish guilt of the accused
filtered
of
all
reasonable
prognosis
favourable to accused to secure conviction
and it is never relieved of its initial duty. It
is only when the initial burden has been
discharged by the prosecution that the
defence of the accused has to be looked
into. Section 106 of the Indian Evidence
Act cannot be applied to fasten guilt on
the accused, even if the prosecution has
failed in its initial burden. Section 106 of
the evidence act has to be read in
conjunction with and not in derogation of
Section 101 Evidence Act. Section 106 of
the Indian Evidence Act does not relieve
prosecution of it's primary and foremost
duty to establish the guilt of the accused
beyond all reasonable doubts independent
of weaknesses of the defence. The fact
required to be proved was "within the
special knowledge of an accused alone"
and prosecution could not have known it
by due care and diligence, that Section
106 can be resorted to by shifting burden
on the accused to disclose that fact which
is "in his special knowledge".

The prosecution is never relieved of its initial
burden to prove its case beyond all reasonable
doubt and the prosecution cannot shift the
burden on the accused, u/s 106 of the Evidence
Act, without discharging its initial burden.
However, where the facts are within the special
knowledge of the accused and cannot be
possibly explained by the prosecution, then the
burden shifts on the accused to explain the said
facts.

Evidence Law - Indian Evidence Act, 1872-
Section 106- The evidence of doctor who
conducted autopsy of deceased, is mere
opinion which is in relation to cause of
death of deceased but it is not indicative
of guilt of appellant. The presence of
appellant at his home at the time of
incident is not established, therefore, his
liability for death cannot be fixed. There is
no any evidence or link to connect the
appellant to the incident i.e. murder of
deceased. Thus, in lack of any such link
which can connect the appellant to the
commission of crime, he cannot be held
guilty of committing the crime only on the
ground that he is husband of deceased.
Death of deceased is not proved to be
caused by hanging and the story as shown
by father-in-law of deceased seems to be
false and his presence on the spot stands
proved. He was in exclusive possession of
the house at the time of commission of
incident. The actual fact was in his
knowledge and he would have disclosed it.
If he did not disclose or keep mum or
disclosed the fact but false, he would
become liable for the commission of crime
with the help of section 106 of Evidence
Act but this factual situation was not
taken in view by the learned trial judge
while
concluding
the
judgment
and
acquitting the informant (father-in-law of
deceased) of the charges.

Where the evidence establishes that the
husband of the deceased was not present at the
time and place of the occurrence and there is
absence of any other evidence linking him with
the commission of the offence, then his
conviction caanot be secured with the aid of
Section 106 of the Evidence Act. Rather, the
burden under Section 106 of the Evidence Act
will be upon the father-in-law whose presence
in
the
house
with
the
deceased
stood
1 All. Dharmendra Rajbhar Vs. State of U.P.
17
established. (Para 25, 39, 40, 41, 42, 43, 45,
47)

Criminal Appeal allowed. (E-2)

Judgements/ Case law relied upon:-

1. Attygalle Vs Emperor, (1936) 38 Bombay
LR 700.

2. Stephen Seneviratne Vs King, (1937) 39
Bombay LR 1

3. Shambhu Nath Mehra Vs St. of Ajmer,
AIR 1956 SC 404

4. Ch. Razik Ram Vs Ch. J.S. Chouhan , AIR
1975 SC 667

5. St. of W.B Vs Mir Mohammad Umar, 2000
SCC(Cr) 1516

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

7. Trimukh Maroti Kirkan Vs St. of Maha.
(2007) 10 SCC 445

8. P. Mani Vs State of T.N. (2006) 3 SCC
161

9. Vikramjit Singh Vs St. of Punj. (2006) 12
SCC 306

10. St. of Raj. Vs Thakur Singh (2014) 12
SCC 211

11. Pawan Kumar Vs St. of U.P. 2016 SCC
OnLine All 949

(Delivered by Hon'ble Subhash Chandra Sharma)

1. This criminal appeal emanates
from the judgment and order dated
15.12.2016 passed by learned Additional
Sessions Judge, Jaunpur in Session Trial
No. 274 of 2015 (State Vs. Heera Lal and
two others) arising out of Crime No. 271
of 2015, under Sections 498-A, 304-B,
302/34 of Indian Penal Code & Section 3⁄4
Dowry Prohibition Act, Police Station
Sureri,
District
Jaunpur
by
which
appellant Dharmendra Rajbhar has been
convicted and sentenced under Section
302 IPC with life imprisonment and fine
of Rs.10,000/-, in default of payment of
fine to undergo additional imprisonment
for a period of one year.

2. The prosecution case in brief is that
Shakuntala Devi, the daughter of informant
Pardeshi Rajbhar, was wedded to appellantDharmendra
Rajbhar
on
08.07.2008.
Sufficient dowry was given in the marriage
but her father-in-law, mother-in-law, sisterin-law and husband were not satisfied with
the dowry. They were making demand for a
golden ring and motorcycle but informant
could not fulfill the demand owing to his
meagre financial conditions. Consequently,
the in-laws were harassing his daughter.
She always told about this to the informant
and members of his family. On 11.06.2015
at
about
8.30
P.M.
informant
was
communicated by the villagers that her
daughter had been killed at about 8.30 P.M.
by her husband, father-in-law, mother-inlaw and sister-in-law. When he arrived at
the spot, dead body of his daughter was
lying at the door but her inmates were
absent. All of them fled away leaving their
home. He lodged an F.I.R. on 13.06.2015 at
Police Station Sureri.

3. On 12.6.2015 at about 0.10 a.m.
Hiralal Rajbhar (father-in-law of deceased)
informed the police at police station Sureri
that his daughter-in-law w/o Dharmendra
Rajbhar aged about 27 years wedded in the
year 2008 was aggrieved with matter
related to tonsure (mundan) of her child.
She hanged in the room while locking the
door from inside. When door was not
opened for long, she was called out but no
response came from inside. They broke
open the door and found her hanging with
18 INDIAN LAW REPORTS ALLAHABAD SERIES
ceiling fan at about 8.30 p.m. He got down
her dead body & lay it on the cot. This
information was entered into G.D. Report
no. 2 the same day.

4. Inquest of deceased Shakuntala
was
conducted
by
Nayab-Tehshidar
Pradeep Tripathi on 12.6.2015 at about 8
O'clock in presence of witnesses. Dead
body was sealed and handed over to
constable Tribuwan Singh and constable
Jaiprakesh Narayan for post-mortem. On
12.6.2015 at about 2 p.m. Post-mortem of
dead body of deceased Shakuntala was
conducted by Dr. Om Prakash Singh.

5. The details of post-mortem report
are as below:

Deceased Shakuntala Devi was
aged about 27 years. Average built body.
Rigor mortis passed in upper limb present
in lower limb. Rigor mortis in upper
extremitis. Cyonosis present on face &
upper extremities. Bleeding from nostrils.

Ante-mortem injuries:- No any
external injury present.

Head: Scalp & skull found
congested.
Brain-congested.
Neck:
mouth,
tongue,
pharynx-congested.
Larynx, vocal dords-congested. Trachea
Hyoid bone was found intact.

Chest: Ribs and chest wall were
found
NAD.
Oesophagus
found
congested. Trachea and Bronchial Tree
were found congested. Pleura found
congested.
Lungs
found
congested.
Pericardium
Pericardial
Sac
found
congested. Right heart filled and left
empty. Large blood vessels-NAD.

Abdomen:
Condition
of
Abdominal wall was pale. Perinoteum
and Peritonial Cavity pale. Stomach wall
condition contents and smell-pale. Small
intestine
including
appendix-gases
present. Fecal matter and gases were
present in large intestine. Spleen-pale.
Pancreas-pale. Condition & weight of
kidney-NAD. Pelvic cavity Tissues-pale.
Genital organs-non gravid uterus. Spinal
column and spinal cord-not opened.

Death approximately about one
day.

Cause of death was Asphyxia as
a result of smothering.

6. Investigation of the case was
handed-over to Circle Officer Virendra
Kumar
Srivastava
who
started
the
investigation and recorded the statement
of informant, inspected the place of
occurrence and prepared the site plan.
The statements of other witnesses were
also recorded and charge sheet was
submitted against accused Heera Lal,
Girja Devi and Dharmendra Rajbhar
under Sections 498-A, 304-B IPC and
Section 3/4 Dowry Prohibition Act before
the court concerned.

7. Learned Chief Judicial Magistrate
took the cognizance of the offences and
provided copies of prosecution papers in
compliance of Section 207 IPC to
accused persons and committed the case
to the court of session for trial.

8. The trial court after taking into
consideration the material on record,
framed the charges against accused
persons under Sections 498-A, 304-B IPC
and Section 4 Dowry Prohibition Act and
alternative charge under Section 302 IPC
read with Section 34 IPC was also
framed.

9. Charges were read-over and
explained to the accused persons, they
did not plead guilty but denied the
charges
and
claimed
for
trial.
1 All. Dharmendra Rajbhar Vs. State of U.P.
19
Consequently, the case was fixed for
prosecution evidence.

10. In support of its case prosecution
examined P.W.1 Pardeshi Rajbhar who is
informant and father of deceased, P.W.2
Chandrama Devi who is mother of
deceased, P.W.3 Santosh Rajbhar who is
brother
of
deceased,
P.W.4
Ranjeet
Chauhan who is gram-pradhan of village
Kathwatiya, as witnesses of fact. P.W.5 Dr.
Om Prakash Singh who conducted the
autopsy of the deceased Shakuntala Devi &
P.W.6 S.I. Ajay Kumar Rai who prepared
essential papers at the time of inquest were
also
examined
as
formal
witnesses.
Genuineness of first information report,
charge sheet was admitted by the learned
counsel for accused persons, therefore, no
formal witnesses in this regard were
summoned and examined. On conclusion
of prosecution evidence, statements of
accused persons were recorded under
Section 313 Cr.P.C. in which they told the
prosecution version false except date of
marriage. They also stated that there was
no evidence against them, thereafter, an
opportunity for defence evidence was given
to them but no evidence was adduced on
their part.

11. After hearing the arguments for
accused as well as the State, learned
Additional Session Judge, Court No. 4,
Jaunpur acquitted the accused persons
(Heerala,
Girja Devi & Dharmendra
Rajbhar) under Section 498-A, 304-B IPC
& Section 4 Dowry Prohibition Act but
convicted
and
sentenced
the
accused/present
appellant
Dharmendra
Rajbhar under Section 302 IPC for a term
of life imprisonment and with fine
amounting to Rs. 10,000/- in default of
payment of fine, to undergo one month
additional imprisonment. Against this order
of conviction and sentence this appeal has
been preferred by the accused-appellant
Dharmendra Rajbhar.

12. Heard Smt. Swati Agrawal,
learned counsel for appellant as well as
Shri Rajesh Mishra, learned A.G.A. for
State and perused the record.

13. Learned counsel for the appellant
submits that the impugned judgment and
order of conviction is bad in law and
against the evidence available on record.
Learned trial court has erred in convicting
the appellant without considering and
appreciating the evidence. Prosecution
could not prove its case with cogent and
reliable evidence and learned trial court has
decided this case wrongfully. Appellant is
innocent. He has not committed any
offence as alleged against him. Offences
under Sections 498-A, 304-B IPC &
Section 3⁄4 Dowry Prohibition Act were not
made out against the appellant, resultantly,
he was acquitted by the trial court but
convicted wrongfully under Section 302
IPC. All the witnesses of fact turned hostile
as they had not supported the prosecution
case. At the time of alleged incident,
appellant was not present in the house
because he was doing a job at Bombay.
This fact was disclosed by all prosecution
witnesses but trial court had not considered
this aspect. One girl aged about 4 years and
boy aged about 2 years were born from the
wedlock of appellant and deceased. The
responsibility of upbringing of these two
issues is on the shoulder of appellant. There
is no evidence constituting the offence
under Section 302 IPC and charge sheet
had also not been submitted under Section
302 IPC but only alternative charge under
Section 302 IPC was framed by the trial
court and without having any evidence on
record,
convicted
the
appellant
20 INDIAN LAW REPORTS ALLAHABAD SERIES
mechanically by taking aid of Section 106
of Evidence Act while appellant was not
present in the village at the time of
incident. The cause of death was opined to
be smothering by the Doctor. On this sole
ground conviction has been recorded,
whereas no other evidence in corroboration
is available on record. In this way, the
impugned judgment and order dated
15.12.2016 passed by learned Additional
Sessions Judge being erroneous in fact and
law is likely to be set-aside and appellant is
entitled for acquittal.

14. Learned A.G.A. opposed the
contentions raised by learned counsel for
the appellant and submitted that in this case
all the witnesses of fact turned hostile.
Deceased Shakuntla Devi died in the house
of her husband. This was custodial death.
In post-mortem, the cause of death was
found to be asphyxia as a result of
smothering. It was not a case of suicide but
homicide. At the time of incident, husband
of the deceased and members of his family
were present in the house. How did she die
in their house was specially in the
knowledge of those persons. This fact
could
only
be
disclosed
by
them.
Prosecution could not be expected to bring
the evidence in this regard which was
beyond its approach. The explanation given
by the accused-appellant is not sufficient
about the cause of death. It was stated by
the father of appellant in his information
tendered to the police station on the day of
incident which was entered into the G.D.
that
deceased
committed
suicide
by
hanging
from
a
bamboo
used
for
suspending a ceiling fan in her room after
bolting it from inside but during the course
of autopsy no ligature mark was found on
her neck, no external injury was found on
her body except cyonosis on face and upper
extremities with bleeding from nostrils. In
the opinion of doctor, her death was caused
due to asphyxia as a result of smothering.
Doctor has also stated before the trial court
that her death was not caused by hanging
and it was not result of suicide. In this way
appellant and members of his family
including his father who informed the
police about this incident had concealed the
real cause of death of deceased. Whereas
the persons living in the same house at that
time could know as to how the death of
deceased occurred. Since, it was custodial
death and accused-appellant with other
members of family was in his house and he
was husband of deceased, so he was liable
for her death. In this way, learned trial
court has recorded conviction of the
appellant with the recourse of Section 106
of Evidence Act which is just and lawful.
There is no error in the impugned judgment
and order.

15. From the submissions made by
learned counsel for the appellant as well as
learned A.G.A. for State and from the
perusal of record, it transpires that as to
whether conviction recorded against the
accused-appellant under Section 302 IPC is
based on the evidence on record or it is
hypothetical and for reaching to the right
conclusion, first it is necessary to reappreciate the evidence available on record
and secondly to consider the invocation of
Section 106 of Evidence Act.

16. As per F.I.R. version, deceased
Shakuntala
was
wedded
to
accusedappellant Dharmendra Rajbhar and she was
married to him on 8.7.2008. From the date
of marriage in-laws of the deceased were
not satisfied. They made demand of golden
ring and a motorcycle which could not be
fulfilled by the parents of the deceased, as a
result she was subjected to harassment by
her in-laws. On11.6.2015 at about 8.30
1 All. Dharmendra Rajbhar Vs. State of U.P.
21
o'clock, father of the deceased/ informant
got information about the death of his
daughter in her Sasural. In this regard, he
lodged an F.I.R. at the police station on
13.6.2015.

17. Information regarding death of
deceased was given to the police on
12.6.2015 at about 0.10 a.m. by the father
of accused-appellant which was entered
into G.D. No. 2. in which he stated that
deceased was aggrieved in relation to
tonsure (mundan) of her children. She
closed herself into her room from inside
and hanged in the bamboo fitted for
suspending ceiling fan with her saree and
committed suicide, when door was not
opened for a long, no response came on
call, he broke open the door and found his
daughter-in-law hanging at about 8.30 p.m.
He got down her dead body & lay it on the
cot. On this information Nayab Tehshildar
and one sub-inspector Ajay Kumar went to
spot where inquest was conduced by
Nayab-Tehshildar and dead body was sent
for post-mortem. In the post-mortem, the
cause of death was found asphyxia as a
result of smothering.

18. P.W.1 Pardeshi Rajbhar (father of
deceased) informant deposed before the
trial court that he wedded his daughter
Shakuntala on 8.7.2008 with Dharmendra
Rajbhar. When her daughter went to her
sasural and came back from there, she told
that her husband, father-in-law, mother-inlaw and sister-in-law demanded a golden
ring and motorcycle. They beat her and
subjected to torture. There was panchayat
between both the parties but they insisted
on demand. On 11.6.2015 at about 8.30
p.m., he was informed by the sister-in-law
of deceased about her hanging. Then, he
went to sasural of his daughter and found
her lying dead on a bed in the room. In
cross-examination, he turned hostile and
stated that Shakuntala used to talk to him,
his wife Chandrama Devi, his son Santosh,
Chandan and daughter Pooja, Shankuntala
never told them about demand of golden
ring and motorcycle made by Hiralal,
Dharmendra and Girja Devi. They never
subjected her to torture. A boy Ajit and a
girl Shreya were born-out of the wedlock of
his daughter & appellant. His daughter was
happy in her sasural. Dharmendra was
earning his livelihood in Bombay. Prior to
this incident, Shankuntala was insisting to
go with Dharmendra to Bombay but he
went to Bombay alone assuring her that he
would
take
her
later
after
making
arrangements. She became depressed and
committed suicide.

19. P.W.2 Chandrama Devi (mother
of deceased) has also stated that Shakuntla
was wedded Dharmendra Rajbhar on
8.7.2008. When she came back from her
sasural, she always told her about her
happiness. She never made complaint of
any kind of harassment or torture. She did
not tell her about the demand of golden
ring and motorcycle. Information about the
death of her daughter was given by her
husband Dharmendra Rajbhar who was
living at Bombay. She also stated that she
along with other members of her family
went to sasural of deceased Shakuntala
where members of her daughter's Sasural
were
present.
Neighbours
told
that
Shakuntala was short tempered and she
used to become angry as a result she
committed suicide. Her daughter died
accidentally.
During
cross-examination
made by learned A.D.G.C. She again stated
that her daughter Shakuntala was happy in
her Sasural and at the time of incident her
son-in-law Dharmendra Rajbhar was living
at Bombay. Her daughter Shakuntala never
told her that Dharmendra made demand of
22 INDIAN LAW REPORTS ALLAHABAD SERIES
golden chain or motorcycle. She was never
subjected to harassment or beating by
inmates of her husband.

20. P.W.3 Santosh Rajbhar (brother of
deceased) has also stated that she was
wedded
to
Dharmendra
Rajbhar
on
8.7.2008. She nenver told about harassment
or torture from her husband or inmates. She
was happy in her sasural. Information
about the death of Sakuntala was given to
him by her husband Dharmendra Rajbhar
who was living at Bombay. He was at
Bombay at the time of incident. Her sister
was never incited for suicide by her inlaws. During cross-examination by learned
A.D.G.C. the witness clearly refused the
fact of complaint made by her sister
relating to harassment and torture. He has
also denied with his statement recorded
under
Section
161
Cr.P.C.
by
the
Investigating Officer.

21. P.W.4 Ranjeet Chauhan who was
gram-pradhan
village
Kathwatiya
has
stated that on 12.6.2015 the daughter-inlaw of Heeralal hanged. He also went there
where police and magistrate were present.
Inquest of deceased Shakuntala was done
in his presence. On the date of incident
Heera Lal and his wife went to their
relative and Dharmendra was living in
Bombay.
Shankuntala
was
under
depression from long period.

22. P.W.5 Dr. Om Prakash Singh
(Medical Officer) has proved the postmortem report Exhibit- Ka-3 in his
handwriting and told that the cause of death
was asphyxia as a result of smothering.
There was no any external injury found on
the body. Only cyonosis was present on
face & upper extremities. During crossexamination, he has stated that there was
not external injury on the dead body. Hyoid
bone was found intact. There was no
ligature mark on her neck. Deceased was
died of asphyxia. There was bleeding from
nostrils and her tongue, eyes were not
coming out. He denied the suggestion made
by learned counsel for defence that she
committed suicide or used saree for
committing suicide by hanging. On query
made by court, he further stated that the
case could not be suicidal in any way. No
suicide can be committed by stopping
breath herself.

23. P.W.6 S.I. Ajay Kumar has stated
that on the information given by Heera Lal
as entered into the G.D., he went to the
place of incident and Nayab Tehshildar
Pradeep Tripathi also came there who got
prepared the inquest report and dead body
was sealed there. It was sent for postmortem. He has proved the inquest report
Exhibit Ka-2 and also paper nos. 7-ka, 8ka, 13-ka/1 and 13-ka/2 and Exhibit-Ka-4
to Ka-8.

24. From the statements made by the
prosecution witnesses. It is evident that
they denied the fact of demand of dowry
and harassment with the deceased on behalf
of her in-laws including her husbandappellant. They turned hostile and even
during their cross-examination by learned
A.D.G.C. nothing appeared to support the
prosecution version relating to demand of
dowry and harassment soon before death.

25. In the situation where the
elements
of
demand of dowry
and
harassment soon before death are lacking,
the presumption under Section 113-B of
Evidence Act cannot attract and conviction
under Section 304-B IPC cannot be held.

26.

Keeping,
this
kind
of
unsupportive evidence in view, learned
1 All. Dharmendra Rajbhar Vs. State of U.P.
23
Additional Sessions Judge has rightly
acquitted
the
accused/in-laws
of
the
charges under Sections 304-B, 498-A IPC
and Section 4 Dowry Prohibition Act but
with the recourse of Section 106 of
Evidence Act, convicted and sentenced the
appellant under Section 302 IPC as being
husband of deceased.

27. At this juncture, it is expedient to
consider the legal position regarding
invocation of Section 106 of Evidence Act
in the case of custodial death in bridal
home.

28. One of the earliest cases in which
Section 106 of Evidence Act was examined
and
explained
are
Attygalle
versus
Emperior reported in (1936) 38 Bombay
LR 700. Stephen Seneviratne versus
King reported in (1937) 39 Bombay LR
1.

"In the aforesaid decisions, Their
Lordships of the Privy Counsel dealt with
Section 106 of Ordinance No. 14 of 1895
(corresponding to Section 106 of the Indian
Evidence Act). It was held that Section 106
of the Evidence Act does not affect the onus
of proof and throw upon the accused the
burden of establishing innocence."

29. Scope of section 106 of the Indian
Evidence Act was examined inconsiderable
detail by the Apex Court in the case of
Shambhu Nath Mehra versus State of
Ajmer reported in AIR 1956 SC 404,
wherein learned Judges spelt out the legal
principle in paragraph 11 which read as
under :

11."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 and which he could prove without
difficulty or inconvenience. The word
"especially" stresses that it means facts that
are preeminently or exceptionally within
his knowledge."

30. In Ch. Razik Ram versus Ch.
J.S. Chouhan reported in AIR 1975 SC
667 it has been held as under:-

"116. In the first place, it may be
remembered that the principle underlying
Section 106 Evidence Act which is an
exception to the general rule governing
burden of proof - applies only to such
matters of defence which are supposed to
be especially within the knowledge of the
defendant-respondent. It cannot apply when
the fact is such as to be capable of being
known also by persons other than the
respondent."

31. In State of West Bengal versus
Mir Mohammad Umar reported in 2000
SCC(Cr) 1516 it has been reiterated as
under:-

"36. In this context we may
profitably
utilise
the
legal
principle
embodied in Section 106 of the Evidence
Act which reads as follows : "When any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him."

37. The section is not intended to
relieve the prosecution of its burden to
prove the guilt of the accused beyond
reasonable doubt. But the Section would
apply to cases where the prosecution has
24 INDIAN LAW REPORTS ALLAHABAD SERIES
succeeded in proving facts from which a
reasonable
inference
can
be
drawn
regarding the existence of certain other
facts, unless the accused by virtue of his
special knowledge regarding such facts,
failed to offer any explanation which might
drive the Court to draw a different
inference.

38. Vivian Bose, J. had observed
that Section 106 of the Evidence Act is
designed to meet certain exceptional cases
in which it would be impossible for the
prosecution to establish certain facts which
are particularly within the knowledge of the
accused."

32. The applicability of Section 106
of the Indian Evidence Act, 1872 has been
lucidly explained by the Apex Court in
paragraph 23 of its judgement rendered in
the case of State of Rajasthan versus
Kashi Ram reported in JT 2006 (12)
SCC 254 which runs as here under:-

"23. The provisions of Section
106 of the Evidence Act itself are
unambiguous and categoric in laying down
that when any fact is especially within the
knowledge of a person, the burden of
proving that fact is upon him. Thus, if a
person is last seen with the deceased, he
must offer an explanation as to how and
when he parted company. He must furnish
an explanation which appears to the Court
to be probable and satisfactory. If he does
so he must be held to have discharged his
burden. Section 106 does not shift the
burden of proof in a criminal trial, which is
always upon the prosecution."

33. When an offence like murder is
committed in secrecy inside a house, the
initial burden to establish the case would
undoubtedly be upon the prosecution. In
view of Section 106 of the Evidence Act,
there will be a corresponding burden on the
inmates of the house to give 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
the accused to offer an explanation.

34. The Apex Court in Trimukh
Maroti
Kirkan
versus
State
of
Maharashtra reported in (2007) 10 SCC
445 reiterated as here under :-

"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
1 All. Dharmendra Rajbhar Vs. State of U.P.
25
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."

35. P. Mani Vs. State of T.N. 2006
(3) SCC 161 the Apex Court held as here
under :

10. We do not agree with the
High Court. In a criminal case, it was for
the prosecution to prove the involvement of
an accused beyond all reasonable doubt. It
was not a case where both, husband and
wife, were last seen together inside a room.
The incident might have taken place in a
room but the prosecution itself has brought
out evidences to the effect that the children
who had been witnessing television were
asked to go out by the deceased and then
she bolted the room from inside. As they
saw smoke coming out from the room, they
rushed towards the same and broke open
the door. Section 106 of the Evidence Act,
to which reference was made by the High
Court in the aforementioned situation,
cannot be said to have any application
whatsoever.

36. The Apex court in the case of
Vikramjit Singh Vs. State of Punjab
2006 (12) SCC 306 observed as here under
:

14. Section 106 of the Indian
Evidence
Act
does
not
relieve
the
prosecution to prove its case beyond all
reasonable
doubt.
Only
when
the
prosecution case has been proved the
burden in regard to such facts which was
within the special knowledge of the
accused may be shifted to the accused for
explaining the same. Of course, there are
certain exceptions to the said rule, e.g.,
where burden of proof may be imposed
upon the accused by reason of a statute.

15. It may be that in a situation of
this nature where the court legitimately
may raise a strong suspicion that in all
probabilities the accused was guilty of
commission
of
heinous
offence
but
applying the well-settled principle of law
that suspicion, however, grave may be,
cannot be a substitute for proof, the same
would lead to the only conclusion herein
that the prosecution has not been able to
prove its case beyond all reasonable doubt.

37. The Apex Court in the case of
State of Rajasthan v. Thakur Singh
reported in (2014) 12 SCC 211, while
allowing the appeal preferred before it by
the State of Rajasthan against the judgment
and order of the Rajasthan High Court, by
which the High Court had set aside the
conviction of accused Thakur Singh
26 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded by the trial court under Section
302 I.P.C. on the ground that there was no
evidence to link the respondent with the
death of the deceased which had taken
place inside the room in the respondent's
house, in which he had taken the deceased
(his wife) and their daughter and bolted it
from within and kept the room locked
throughout and later in the evening when
the door of the room was broken open the
deceased was found lying dead in the room
occupied by her and the respondentaccused, held:

The High Court did not consider
the provisions of Section 106, Evidence
Act at all. The law is quite well settled, that
burden of proving guilt of the 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. In the instant case,
since the deceased died an unnatural death
in the room occupied by her and the
respondent, cause of unnatural death was
known to the respondent. There is no
evidence that anybody else had entered
their room or could have entered their
room. The respondent did not set up any
case that he was not in their room or not in
the vicinity of their room while the incident
occurred, nor he did set up any case that
some other person entered room and cause
to the unnatural death of his wife. The facts
relevant to the cause of the death of the
deceased
being
known
only
to
the
respondent, yet he chose not to disclose
them or to explain them. The principle laid
down in Section 106, Evidence Act, is
clearly applicable to the facts of the case
and there is, therefore, a very strong
presumption
that
the
deceased
was
murdered by the respondent. It is not that
the respondent was obliged to prove his
innocence or prove that he had not
committed any offence. All that was
required of the respondent was to explain
the unusal situation, namely, of the
unnatural death of his wife in their room,
but he made no attempt to do this. The
High Court has very cursorily dealt with
the evidence on record and has upset a
finding of guilt by the trial court in a
situation where the respondent failed to
give any explanation whatsoever for the
death of his wife by asphyxia in his room.
In facts of the case, approach taken by the
trial court was the correct approach under
the law and the High Court was completely
in error in relying primarily on the fact that
since most of the material prosecution
witnesses (all of whom were relatives of
the respondent) had turned hostile, the
prosecution was unable to prove its case.
The position in law, particularly Section
106,
Evidence
Act,
was
completely
overlooked by the High Court, making it a
rife at a perverse conclusion in law.

38. A Division Bench of this Court, in
the case of Pawan Kumar versus State of
U.P. and reported in 2016 SCC OnLine
All 949 held as under:-