# Kalim Asgar v. State of U.P - **Citation:** (2023) 10 ILRA 675 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2023-10-11 - **Case number:** J. Criminal Appeal No. 7290 of 2019 - **Bench:** Surya Prakash Kesarwani, Ms. Nand Prabha Shukla - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kalim-asgar-v-state-of-u-p-49503 - **Pages:** 14 ## Headnote Criminal Law - Indian Penal Code, 1860 - Sections 302 & 498A - Dowry Prohibition Act, 1961 - Section 4 - Indian Evidence Act, 1872 - Sections 11 & 106 -The appellant, Kalim Asgar, was convicted and sentenced to life imprisonment with a fine of Rs.20,000 (with 3 months' simple imprisonment in default) under Section 302 IPC by the Additional Sessions Judge, Court No. 6, Kanpur Nagar, on 05.10.2019 in Session Trial No. 544 of 2014, arising from Case Crime No. 104/2014, Police Station Chamanganj, Kanpur Nagar.-The FIR, lodged by Firoz Alam (P.W.-1, brother of deceased Shaheen Bano), alleged that Shaheen, married to the appellant on 12.03.2006, was harassed for dowry (a car and Rs.2 lakhs) by the appellant and his brother-in-law Sayeed. On 24.06.2014, at around 7:30 pm, she was allegedly beaten and burnt to death by them. Her body was found at the gate of the washroom in her matrimonial home.-The prosecution examined 10 witnesses and produced 12 exhibits, including the FIR, postmortem report, and site plan. The postmortem (P.W.-4) revealed ante-mortem burn injuries and contused swellings on the head and body, with death due to shock from burns. Carbon particles in the larynx and trachea confirmed burning as the cause.-The appellant claimed alibi, stating he was at work (MNREGA, Shivrajpur, 35-40 km away) during the incident, supported by D.W.-2 (Block Development Officer). He also alleged that Shaheen assaulted her father-in-law Sageer Ahmad with an iron rod, and, presuming him dead, committed suicide by self-immolation.- Sageer's medical report (D.W.-3) showed seven injuries, but no blood oozing, contradicting the appellant's claim. Coaccused Sayeed died during the investigation. Case Law Cited: ## Text _Characters 0–39,922 of 44,637. This is a partial read: ask again with offset=39922 for what follows._ 10 All. Kalim Asgar Vs. State of U.P. 675 (91) Accordingly, this appeal is partly allowed. Record and proceedings be remitted to the Court below forthwith. (92) A copy of this judgment be sent to the concerned court for compliance and keeping it with original records ---------- (2023) 10 ILRA 675 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 11.10.2023 BEFORE THE HON'BLE SURYA PRAKASH KESARWANI, J. THE HON'BLE MS. NAND PRABHA SHUKLA, J. Criminal Appeal No. 7290 of 2019 Kalim Asgar ...Appellant Versus State of U.P. ...Respondent Counsel for the Appellant: Sri Mohd. Farooq, Sri Atul Srivastava, Sri Laike Counsel for the Respondent: G.A., Sri Rakesh Dubey Criminal Law - Indian Penal Code, 1860 - Sections 302 & 498A - Dowry Prohibition Act, 1961 - Section 4 - Indian Evidence Act, 1872 - Sections 11 & 106 -The appellant, Kalim Asgar, was convicted and sentenced to life imprisonment with a fine of Rs.20,000 (with 3 months' simple imprisonment in default) under Section 302 IPC by the Additional Sessions Judge, Court No. 6, Kanpur Nagar, on 05.10.2019 in Session Trial No. 544 of 2014, arising from Case Crime No. 104/2014, Police Station Chamanganj, Kanpur Nagar.-The FIR, lodged by Firoz Alam (P.W.-1, brother of deceased Shaheen Bano), alleged that Shaheen, married to the appellant on 12.03.2006, was harassed for dowry (a car and Rs.2 lakhs) by the appellant and his brother-in-law Sayeed. On 24.06.2014, at around 7:30 pm, she was allegedly beaten and burnt to death by them. Her body was found at the gate of the washroom in her matrimonial home.-The prosecution examined 10 witnesses and produced 12 exhibits, including the FIR, postmortem report, and site plan. The postmortem (P.W.-4) revealed ante-mortem burn injuries and contused swellings on the head and body, with death due to shock from burns. Carbon particles in the larynx and trachea confirmed burning as the cause.-The appellant claimed alibi, stating he was at work (MNREGA, Shivrajpur, 35-40 km away) during the incident, supported by D.W.-2 (Block Development Officer). He also alleged that Shaheen assaulted her father-in-law Sageer Ahmad with an iron rod, and, presuming him dead, committed suicide by self-immolation.- Sageer's medical report (D.W.-3) showed seven injuries, but no blood oozing, contradicting the appellant's claim. Coaccused Sayeed died during the investigation. Case Law Cited: 1. Sharad Birdhi Chand Sarda Vs St. of Mah., 1984 SCC (4) 116 (Para 14). 2. Trimukh Maruti Kirkan Vs St. of Mah., (2006) 10 SCC 681 (Para 14). 3. Dodhnath Pandey Vs St. of U.P., AIR 1981 SC 911; (1981) 2 SCC 166 (Para 12, 14). 4. Binay Kumar Singh Vs St. of Bihar, (1997) 1 SCC 283 (Para 14). 5. Munshi Prasad Vs St. of Bihar, (2002) 1 SCC 351 (Para 14). 6. Nagendra Sah Vs St. of Bihar, (2021) 10 SCC 725 (Para 11). (Delivered by Hon'ble Ms. Nand Prabha Shukla, J.) 1. Heard Sri Laike, learned counsel for the accused/appellant, Sri Jitendra Kumar, learned A.G.A. for the State/opposite party and Sri Rakesh Dubey, learned counsel for the first informant. 676 INDIAN LAW REPORTS ALLAHABAD SERIES 2. The present criminal appeal has been filed against the Judgment and Order dated 05.10.2019 passed by Additional Sessions Judge, Court No. 6, Kanpur Nagar in Session Trial No.544 of 2014 (State vs. Kalim Asgar) related to Case Crime No.104 of 2014, under Section 302 IPC, Police Station Chamanganj, District Kanpur Nagar, convicting and sentencing the accused appellant with rigorous imprisonment for life under section 302 IPC with fine of Rs.20,000/- and in default of payment of fine, further three months simple imprisonment. 3. Narration of Facts: Firoz, the brother of the deceased lodged the first information report alleging therein that his sister Shaheen Bano was married to Mohd. Kalim on 12.03.2006. At the time of her marriage, he gave sufficient dowry, motorcycle and jewelleries etc. but her husband Kalim and Sayeed (her Nandoi) were not happy and demanded a car and cash of Rs.2 lacs. Due to this demand of dowry, she was subjected to harassment. The sister often complaint her agony whenever she visited her parental home. First informant and his mother tried to console her. As the harassment still continued, the first informant gave a cash of Rs.20,000/- to appease the in-laws. About five days before the incident, the sister of the first informant visited his house and disclosed that the accused persons again tortured her for demand of dowry. On 24.06.2014 at around 7:30 pm, the cousin of the first informant gave the information that the in-laws of Shaheen have set her ablaze after beating her, who thus died. Her sister Shaheen Bano has been burnt to death by husband Kalim and Sayeed. When he reached the in-laws house he saw the dead body of his sister lying at the gate of the washroom. 4. An FIR bearing Case Crime No.104/204 dated 24.06.2014 was registered at 8:15 pm, under Sections 498A, 302 IPC and Section 3/4 Dowry Prohibition Act, Police Station Chamanganj, District Kanpur Nagar against Mohd. Kalim Asgar and Sayeed. 5. The Investigating Officer recorded the statement of the first informant and conducted the inquest proceeding on the dead body on 24.06.2014, prepared the police papers and sent the body for post mortem. Thereafter, he recorded the statements of other witnesses, made a spot inspection and prepared the site plan. After collecting all the incriminating material a Charge Sheet No.51/14 dated 16.09.2014 was submitted against the accused appellant Kalim Asgar. The co-accused Sayeed died during investigation. 6. The cognizance was taken on 22.09.2014 and the Trial Court framed the charges on 05.12.2014 under Sections 498A, 302 IPC and section 4 of Dowry Prohibition Act against the accused/appellant. The accused/appellant pleaded not guilty and claimed for trial. 7. During trial, the prosecution examined 10 witnesses and documentary evidence i.e. Exhibits Ka-1 to Ka-12 which are as under: Prosecution Witnesses: P.Ws. Prosecution Witnesses Status PW-1 Firoz Alam First Informant/real 10 All. Kalim Asgar Vs. State of U.P. 677 brother of the deceased PW-2 Sham Alam Cousin brother of the deceased PW-3 Mohd. Shami Uncle of the deceased PW-4 Dr. Kuldeep Singh Tomar Conducted the post-mortem examination of the dead body of the deceased. PW-5 Harnaam Singh Police Constable who proved Chik FIR PW-6 S.I. Zubair Ahmad First Investigating Officer. P.W.- 7 S.I. Om Prakash Singh Sub Inspector, Police Station Chamanganj. PW-8 S.I. Allauddin Ansari Second Investigating Officer. PW-9 Vinod Kumar Senior Scientist, FSL, Lucknow. PW10 Rakesh Kumar Singh The ACMM-III, Kanpur Nagar who proved the inquest report. Documents exhibited and proved: Documents Exhibits Tehrir/First Information Report Ex.Ka-1 Post Mortem Report Ex.Ka-2 Chik FIR Ex.Ka-3 G.D. Entry Ex.Ka-4 Site Plan Ex.Ka-5 Charge Sheet Ex.Ka-6 Spot Insepction Report Ex.Ka.7 Panchayatna ma Ex.Ka.8 Photolash Ex.Ka.9 Chitthi CMO Ex.Ka.10 Challan Lash Ex.Ka.11 Fard Challan Ex.Ka.12 8. Prosecution witnesses : i. P.W.-1: Firoz Alam - is the real brother of the deceased and is the first informant- During examination-in-chief, he deposed that his sister Shaheen Bano was married to Mohd. Kalim. At the time of marriage, sufficient dowry, motorcycle and jewelleries etc. were given but in-laws were not happy, rather demanded a car and cash of Rs.2 lacs. Due to this demand of dowry, Shaheen was subjected to harassment which she often disclosed while visiting her parental home. He often consoled her and supported her but still the harassment continued. He even gave cash of Rs.20,000/- twice. About five days before the incident, his sister went to her parental home and disclosed that the accused again harassed her for dowry. On 24.06.2014 at 7:30 pm, his cousin informed that Shaheen was beaten by her husband Kalim and her Nandoi Sayeed and was burnt to death. When he reached her in-laws house, her 678 INDIAN LAW REPORTS ALLAHABAD SERIES dead body was lying in front of the washroom. Even during cross-examination, Firoz Alam repeated the aforesaid facts and stated that at the time of incident, when he reached at the spot, accused Kalim and his families members, i.e. father and his nephew Anus were not present rather nephew was found sitting in the house of one Goga Bhai. When the nephew was enquired about the incident he could not reply anything. The neighbours also could not disclose anything. When he reached the spot, it seemed as if incident took place about one and a half hours before he reached. No traces of smoke was found and the body of the deceased was all wet. Kalim Asgar used to work at MNREGA. On the date of incident, Kalim Asgar went for his duty at 8:00 am and his father Sageer Ahmad and wife Shaheen Bano were present at home. 10. In his suggestion, he categorically denied that on the date of incident, some quarrel took place between his sister Shaheen Bano and her father-in-law for his malicious ill will and Shaheen Bano would have caused injuries to Sageer Ahmad with an iron rod. He also denied that Sageer Ahmad felt unconscious due to the injuries caused by Shaheen Bano and might have thought him to be dead. Due to this reason, she might have poured kerosene oil on herself and set her ablaze and died in order to save herself from accusation. He also denied that on the date of the incident, the accused Kalim Asgar was on duty at Shivrajpur and was not at the place of the incident. He further denied that before the incident Sageer would have outraged modesty when she was all alone at home and the deceased would have made an attempt to save herself and would have caused him injuries. ii. P.W.-2: Shah Alam - is the cousin brother of the deceased -He deposed that the deceased was his cousin sister and married to Kalim Asgar. On 24.06.2014, he came to know that the husband of Shaheen and her Nandoi Sayeed and father-in-law have burnt her to death. He at once gave this information to his cousin Firoz Alam. Within ten minutes, Firoz Alam reached the spot and saw that his sister was lying dead in a burnt condition at the gate of the washroom. At that time, it was about 7:30 pm. Then Firoz went to the police station to lodge the FIR. The police reached the spot and proceeded with the inquest and started the investigation. In the cross examination, the said witness admitted the aforesaid facts. When he reached at the spot he saw the public gathering, who informed that Shaheen was burnt to death by her husband, father-in-law and her Nandoi. He gave this information to Firoz Alam at 7:30 pm. No one from the inlaw's family was available inside the home. He was a witness of inquest proceeding. On the suggestions given by the accused he denied that Sageer Ahmad was found in the injured state and the blood was oozing out from his hands and legs. He also denied that he had any information that Sageer Ahmad had malicious ill will on Shaheen, due to this reason she assaulted him with danda and Sageer Ahmad fell unconscious. He also denied that Shaheen presumed that Sageer was unconscious and had lost his life, due to this reason, she was perplexed and committed suicide. He further stated that he was not aware that Kalim Asgar was on duty at 8:00 am at Shivrajpur Block MNREGA and returned at about 7:00 to 8:00 pm. He also denied that Sayeed committed suicide as Shah Alam and his cousin brother went to the factory and tried to kill him due to this threat, he committed suicide. He also stated that it is incorrect to 10 All. Kalim Asgar Vs. State of U.P. 679 say that Kalim Asgam never harassed Shaheen and never demanded cash of Rs.2 lacs and a car. iii. P.W.-3: Mohd. Shamim - is the uncle of the deceased - He deposed that after getting the information, he reached the spot and found the police and other officials present, who started with the inquest proceeding. He was also a witness of the inquest proceeding. After completing the police papers, the body was sent for post mortem. The said witness in his crossexamination stated that he received this information from Shah Alam at 7:30 pm. When he reached the spot, he found her dead body with burnt injuries, there were other injuries on her head and several other injuries on her body. He further stated that at the time of incident, the accused was not at his job but was very well present at the spot. The incident took place 7-8:00 pm. On the suggestion given by the defence he stated that it is incorrect to say that the husband was not present at home. He had no information that the father-in-law was lying inside his home in an injured state. He was also not aware that Shaheen assaulted her father-in-law due to his malicious ill will who fell unconscious. Deeming him to be dead and to escape the accusation, she poured the kerosene oil on her body and set herself ablazed. iv. P.W.-4: Dr. Kuldeep Singh Tomar - conducted the autopsy and proved the post mortem report who deposed that the dead body was brought by the Constables Gore Lal and Prem Kishore. The doctor opined that the death took place a day before the post mortem and the cause of death was shock due to ante mortem burn injury. The injuries found on her body were ante-mortem burn injuries. He further opined that in case a person falls on the ground that strikes to a hard object then injury nos. 2, 3 and 4 can be caused. He said that injuries must have been caused about 24 hours before the post mortem. According to the autopsy report following ante mortem injuries were found on the body of the deceased : External Injuries: "1. Superficial to deep burn all over body except front lower part of right leg. Both sole line of redness found at places, skin peeling off at places. Skull hair, eye brow, eye laces, axillaries hair pubic hair - burn and seizing. 2. Contused swelling 14 x 5 cm right temporal, parietal and frontal just above right ear. On dissection- clotted blood found skin and muscle. 3. Contused swelling 8 x 5 cm occipital region- 4 cm behind both ears. On dissection - clotted blood found. 4. Contused swelling12 x 5 cm left temporal. On dissection - clotted blood found. 5. Right clavicle region on dissection clotted blood found. Skin and muscle." The external general appearance was in pugilistic attitude (boxing attitude). Eyes were closed, mouth was partially opened and the tongue was protruded. Carbon particles were found in the larynx, vocal cords and trachea. The cause of death was shock due to ante mortem burn injury and the manner of injuries was burnt and with hard blunt object. v. P.W.-5: Harnaam Singh - is the Police Constable who proved the Chik FIR - The said witness has stated on oath that on 24.06.2014, he prepared the Chik FIR on the basis of the Tehrir given by the first informant and entered it as Rapat No. 56 as 680 INDIAN LAW REPORTS ALLAHABAD SERIES 20-15 in the General Diary. The Chik FIR and original G.D. were proved by him as Exhibit Ka-4. vi. P.W.-6: Zubair Ahmad - is the first Investigation Officer - He took over the investigation on 24.06.2014, prepared the nakal Chik and nakal G.D., recorded the statements of the witnesses, made the spot inspection and prepared the site plan. Prepared the article recovered from the place of incident. Arrested the accused Kalim Asgar, recorded his statement, perused the post mortem report and made necessary entries in the Case Diary. During cross-examination, he stated that he did not mention the time of initiation and completion of investigation. At the time of spot inspection, he found the blood stained bed sheet in the bedroom of the deceased and prepared the recovery memo. He did not collect the blood found on the wall. The house where the incident took place, the deceased, her husband Kalim Asgar, son Anus and father-in-law Sageer Ahmad used to live. He admitted that after the incident, Sageer Ahmad, the father-in-law was found inside the house in an injured state. vii. P.W.-7: Om Prakash Singh - is the Sub Inspector who proved the inquest report - In his chief, he deposed that on 24.06.2014, he was posted as S.I. in Police Station Chamanganj. On the same date, Shaheen Bano died due to burn injuries. On receipt of information, he reached the spot, informed the ACMM-III Rakesh Kumar, who also reached the spot and completed the inquest proceedings. In his crossexamination, he stated that his signatures are not in the inquest report. The opinion was given by the panch witnesses. He did not state that the husband of the deceased burnt her to death after pouring kerosene oil. viii. P.W.-8: S.I. Allauddin Ansari - is the second Investigating Officer who has proved the charge sheet. In his crossexamination, he stated that during investigation he tried to gather the information as to whether on the date of incident, Kalim Asgar was on job at his office at Shivrajpur. He further stated that he did not inquire Sageer Ahmad (injured) as to under what circumstances, he received the injuries and why he was sent by the Police Officers for medical treatment. ix. P.W.-9: Vinod Kumar- is the Senior Scientist, FSL Lucknow. He proved the articles collected near the body of the deceased - He deposed that on the date of incident, he reached to the spot alongwith his team on a telephonic information at about 9:15 pm. and collected the half burnt clothes, two partially used matchsticks alongwith the matchbox. A plastic container with half litre of liquid substance like kerosene, two iron distorted pipes with a plastic handle, blood stained cotton, plain and blood clotted cotton bed sheet and plain bed sheet and digital photograph of the place of the incident. In his crossexamination, he stated that the lid of the container was broken. The bag containing the clothes were not sealed and recovered material was not sent for forensic examination. x. P.W.10: Rakesh Kumar Singh - was the ACMM-III, Kanpur Nagar who proved the inquest report - The said witness stated on oath that on 24.06.2014 he was posted as ACMM-III, Kanpur Nagar. He prepared the inquest report and proved the inquest report, photo naash, letter C.M.O., and challan lash and stated that the deceased died on 24.06.2014 due to burn injuries at House No. 105/696, Plot No. 3, Sarai Compound. 10 All. Kalim Asgar Vs. State of U.P. 681 9. Statement under Section 313 Cr.P.C.: The incriminating circumstances appearing in the prosecution evidence were put to the accused appellant for recording his statement under section 313 Cr.P.C. The accused appellant in his defence gave his written submissions under section 313 (5) Cr.P.C. stating his defence and the medico legal report of his father Sageer dated 24.06.2014 at 9:45 pm. He denied the incriminating circumstances appearing against him and claimed that he has been falsely implicated. No additional dowry was demanded from the deceased Shaheen. Neither she was subjected to harassment for dowry nor she was burnt to death by the accused appellant. On the date and time of the incident, the accused appellant was on his duty at Block Development Office at Shivrajpur. The deceased assaulted her father-in-law with an iron rod and being guilty consciousness she set herself ablazed. It has been further stated that the prosecution failed to prove the case beyond the reasonable doubt. 10. Defence Witnesses : i. D.W.-1: Shakeel Ahmad - was the local resident - This defence witness stated that he knew Kalim Asgar who lived in his locality since past ten years. On 24.06.2014 at around 8:00 pm while he was on the way to meet his friend Iqbal, he over heard that his wife had committed suicide by setting herself ablaze. He reached the spot and saw the crowd and the police. Sageer Ahmad was seriously injured and the Circle Officer sent him to Ursala Hospital for treatment and he too went alongwith him for aid. Sageer Ahmad was extremely serious due to injuries and was admitted for treatment. Sageer Ahmad was taken by the Police Officers on a vehicle. He asked Sageer Ahmad on the way, then he replied that Shaheen, wife of Kalim had assaulted him with an iron rod and when he fell down, Shaheen poured the kerosene oil on herself and burnt herself. As no one was available in the house to save her, consequently, she died. ii. D.W.-2: Alok Pandey - was posted as Block Development Officer, Shivrajpur, Kanpur Nagar. At the time of deposition that he had brought the original Attendance Register of June, 2014 of Block Development Office at Shivrajpur to prove the attendance of Kalim Asgar on the date of incident. Kalim Asgar was working as an Account Assistant (contractual) in the MNREGA Yojana at Shivrajpur at Block Development Office, Kanpur Nagar. The presence of Kalim Asgar as per office records was from 02.06.2014 to 24.06.2014 and his signatures were also mentioned in the register. The said witness proved the xerox copy of the register as original Attendance Register. iii. D.W.-3: R.K. Sonkar - was the Chief Pharmacist. At the time of deposition, he was posted at UHM, Kanpur Nagar, who proved the injuries of Sageer Ahmad - The said defence witness stated that on 24.06.2014 at 9:40 pm, the injuries of Sageer Ahmad were examined by Dr. Anupam Sachan. Total seven injuries were found in the medical report. Sageer Ahmad remained in the Hospital till 30.06.2014. 11. Submission on behalf of the accused/appellant: Learned counsel for the accused/appellant submitted that the deceased assaulted her father-in-law who fell and fainted and due to fear of his death 682 INDIAN LAW REPORTS ALLAHABAD SERIES and being guilty conscious she committed suicide by setting herself ablaze. At the time of her death, she was on moving position as her soles were found not burnt. It was further submitted that the accused/appellant was not present in the house on the date and time of the occurrence as he had not returned from his office. The accused/appellant was working under MNREGA as Account Assistant (contractual) and the distance of his office was about 35-40 k.m. away from the place of incident and he returned on 24.06.2014 (i.e. date of incident) at about 7:00 p.m. It was next submitted that as per the post mortem report, the ante mortem injuries were of about 24 hours before from the time of the post mortem report and thus, the injuries received by the deceased would have been caused about 1:00 p.m. on 24.06.2014 at that time, the accused/appellant was on his office. Thus, non presence of the accused/appellant at the date, time and place of incident was fully established and yet the trial Court had completely erred in holding the accused/appellant guilty. He submitted that Sageer Ahmad (father of the accused/appellant) whose presence inside the house at the date, time and place of the incident, is fully established, was not interrogated by the Investigating Officer, although he was beaten by the deceased and received serious injuries on his body and he was sent to the Government Hospital for treatment and examination of the injuries by the Police, accompanied with a Constable. Sageer Ahmad was the most important and crucial witness but he was not interrogated by the Investigating Officer. The other accused Sayeed, who was brother-in-law (Nandoi of the deceased) died after five days of the incident, as someone had forcefully administered poison while he was going to his office. During the course of arguments, he further submitted that the present case is the case of a circumstantial evidence and the chain of events is not complete and as such, the accused/appellant cannot be held guilty and he is entitled for the benefit of doubt. He also submitted that the accused/appellant is innocent and was not at all involved in the murder of his wife. In support of his submission on the point of circumstantial evidence, learned counsel for the accused/appellant relied upon the judgment of Hon'ble Supreme Court rendered in the case of Sharad Birdhi Chand Sharda vs. State of Maharashtra, 1984 SCC (4) 116. Learned counsel for the accused/appellant, with regard to section 106 of Evidence Act on burden of proof, has relied upon the judgment of Hon'ble Supreme Court in the case of Nagendra Sah vs. State of Bihar, (2021) 10 SCC 725. 12. Submission on behalf of the State/opposite party: Per contra, learned A.G.A. for the State submitted that the chain of events is complete and evidence led by the prosecution, leave no manner of doubt that the appellant is guilty of committing murder of his wife and as such, the learned trial Court has rightly and correctly convicted and sentenced the accused/appellant. He further submitted that the plea of alibi taken by the accused/appellant is totally unproved and no benefit of doubt can be extended to the accused/appellant. ] 10 All. Kalim Asgar Vs. State of U.P. 683 In support of his submission, learned A.G.A. relied upon the judgment of Hon'ble Supreme Court in the case of Dodhnath Pandey vs. State of Uttar Pradesh, AIR 1981 SC 911; (1981) 2 SCC 166. 13. Submission on behalf of the first informant: Sri Rakesh Dubey, learned counsel for the informant submitted that the accused/appellant had set up a false defence. Even in his statement recorded under Section 313 Cr.P.C., the accused took the stand that Sageer Ahmad was beaten by the deceased and consequently, he fell and fainted. While from the post mortem report, it could be found that the deceased was badly beaten and she had received grievous injuries on her head and other parts of the body and as per the post mortem report her tongue was protruded out. These injuries are ante mortem injuries. As per post mortem report the deceased was set ablazed on fire after the ante-mortem injuries. The place where the incident took place, was the house of the accused/appellant. No explanation could be given as to how the deceased was set ablazed on fire. Therefore, the presumption of section 106 of Evidence Act is liable to be drawn. He submitted that chain of events is complete and it has been proved beyond the reasonable doubt by the prosecution that the accused/appellant committed murder of his wife. 14. Analysis and findings On the basis of the evidence adduced by the witnesses of fact P.W.-1 and P.W.-2, it can be concluded that the said witnesses are not the eye witness account of the said incident. They have deposed that at the time of marriage sufficient dowry was given to the accused/appellant but later on she was subjected to harassment for the additional demand of dowry of a car and cash of Rs.2 lacs. Whenever the deceased visited her parental home, she complained about the harassment due to non-fulfillment of dowry. Due to this reason, the deceased was burnt to death on 24.06.2014 at about 7:30 p.m. after pouring kerosene oil upon her. It is clear from the statement of aforesaid witnesses of fact that at the time of marriage there was no demand of dowry but the dowry was given by the witnesses on their own. It was in the year 2009-2010 that the deceased was harassed for demand of dowry wherein the said witnesses gave Rs.20,000/- twice to their sister. It is not clear from their statement that as to when the said amount was given. Though there were allegations of additional demand of dowry and harassment but no complaint or FIR was registered for the same. There are minor contradictions in the statements of P.W.-1 and P.W.-2 with regard to the evidence for demand of dowry. It can be fairly concluded that there was no such additional demand of dowry and cash of Rs.2 lacs by the in-laws that too after about passing of more than eight years of the marriage. Thus, the prosecution failed to prove the offence under Section 498-A IPC and section 4 of Dowry Prohibition Act, beyond reasonable doubt. It is the contention of the prosecution that the said incident took place after eight years of the marriage and the deceased was burnt to death within the house of the accused. On the other hand, the accused contended that as the deceased assaulted her father-in-law with an iron rod due to which, he fainted and deeming him to be 684 INDIAN LAW REPORTS ALLAHABAD SERIES dead, the deceased was overwhelmed with fear and committed suicide by setting herself ablazed. Though there is no eye witness account of the said incident and it is case of circumstantial evidence. It is only the chain of events which indicates towards the guilt of the accused. As per the golden principles laid by Hon'ble Supreme Court in the case of Sharad Birdhi Chand Sarda vs. State of Maharashtra, 1984 SCC (4) 116. Five golden principles i.e. the panchsheel of the proof of a case based on circumstantial evidence have been laid down as follows: "(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. (ii) The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) The circumstances should be of a conclusive nature and tendency; (iv) They should exclude every possible hypothesis except the one to be proved; and (v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." From the perusal of the record, we find that when the witnesses of fact P.W.-1 and P.W.-2 reached the in-laws place, they found Shaheen Bano lying dead in front of the gate of the washroom and no family member was found at the spot. At the time of incident, the deceased Shaheen Bano, her husband Kalim Asgar and the son Anus and father-in-law Sageer Ahmad used to live at House No.105/696, Plot No.3, Sarai Compound, Chamanganj, Kanpur Nagar. When P.W.1 reached the place of occurrence, it appeared that the incident must have occurred about one an half hours before he reached. No smoke was seen, the dead body of the deceased was wet. Her husband Kalim though was on duty on the date of incident but his presence cannot be denied at home at the time of incident. It is evident from the aforesaid facts that the deceased died at her matrimonial home in an unnatural circumstances. It was the burden of accused/appellant to give plausible explanation with regard to the death of the deceased in his house. Section 106 of Indian Evidence Act - Burden of proving fact especially within the knowledge: " When any fact is especially within the knowledge of any person the burden of proving that fact is upon him." The Hon'ble Supreme Court in Trimukh Maruti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681, has observed that: " 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 ofSection 106of 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 10 All. Kalim Asgar Vs. State of U.P. 685 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." It has been further held that : " In a case based on circumstantial evidence where no eye- witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court." The accused appellant could not give any plausible explanation with regard to the ante mortem injuries caused to the deceased, i.e., contused swelling 14 x 5 cm right temporal parietal and occipital region on top of right ear. Clotted blood was found on the top of the ear. The other contused swelling was 8 x 5 cm and after dissection clotted blood was found. The accused persons could not give any explanation as to how these injures were caused. The accused appellant in the statement recorded under Section 313 Cr.P.C. as well as in the written statement has proved the injury report of Sageer Asgar dated 24.06.2014 at 9:40 pm asserting that the deceased assaulted him with an iron rod and deeming him to be dead and getting overwhelmed with that fear, set herself on fire and died. The accused appellant in his written statement categorically stated that when he reached his home, he found his father unconscious and the blood was oozing out. On the other hand, D.W.-1 Sakeel Ahmad deposed that while he was accompanying Sageer Ahmad for the Hospital, then on the way, the injured Sageer disclosed that the deceased assaulted him with an iron rod, which seemed to be contradictory to each-other. Even from the medical report it is evident that no blood was oozing out from the body of Sageer Ahmad. The defence has produced the medical report of Sageer Ahmad wherein D.W.-3 R. K. Sonkar found that there were total seven injuries but no blood was oozing from any injury. The accused failed to prove that Sageer Ahmad was conscious at the time of incident and the blood was oozing out from his body. From the nature of injuries, as per the medical jurisprudence, the injuries caused by the iron rod would be in cylindrical shape. No swelling was found. Therefore, it can be safely concluded that the said injuries were not caused by iron rod. It is the defence of accused/appellant that at the time of the incident, he was not present at the place of occurrence. The doctrine of plea of alibi comes within the purview of section 11 of Indian Evidence Act. While taking this plea, the accused/appellant in his statement given under section 313 Cr.P.C. stated that at the time of the incident, he was on his duty at MNREGA Block Development Office, Shivrajpur where he was working as Account Assistant (contractual). To prove this fact, Alok Pandey was produced as D.W.-2 who proved the original Attendance Register of June, 2014 of Block Development Office, Shivrajpur, Kanpur Nagar and 25.08.2014 where the presence 686 INDIAN LAW REPORTS ALLAHABAD SERIES of Kalim Asgar was marked and his signature was also there. However, from 25.06.2014, onwards no mark of his presence in the Attendance Register. The said office opens at 10:00 am in the morning and closes at 5:00 pm. To cover a distance from Kanpur Nagar to Shivrajpur, Block Development Office is generally takes one and a half hour by travelling in a Government Bus which is at the distance of about 35 kms. An interesting point was noticed during the course of argument is that D.W.- 2 (Alok Pandey) in his cross-examination stated that though he was not posted at Block Shivrajpur from 02.06.2014 to 26.06.2014, yet he deposed that the persons working on contractual basis at MNREGA came to the office and used to put their signatures in the Attendance Register and did their work. At that point of time, who came, at what time and went back, was not noticed by him as he was not posted in the said Block Development Office. The employees used to come in time and after completing their duty went away from the office at 5:00 pm. As accountants had no field work so they were confined to the office. In case, any employee came in the morning then he may go in the afternoon after taking short leave. But no employees took short leave till then. He denied the suggestion that the employees reached the office in the morning, they could go away without informing anyone. He categorically denied that on the date of incident, he was posted at Shivrajpur Block and after getting posted he had sought any information about Kalim Asgar. From the statement of the defence witness (D.W.-2), it was very well established that though the accused appellant Kalim Asgar was present at his office on the date of incident but there was no such concrete material to show as to what time, he left the office. Even if, Kalim left the office as per the set schedule at around 5:00 pm, then to travel a distance of 35 kms within a span of one and a half hours by a Government Bus is not an impossibility. His presence at his house at around 6:30 pm to 7:30 pm cannot be doubted from the aforesaid conclusion. Thus, the accused appellant failed to prove the plea of alibi to prove his non-presence at the place of incident. The Hon'ble Supreme Court while dealing with Section 11 of Indian Evidence Act with regard to the plea of alibi has held in catena of cases Dodhnath Pandey vs. State of Uttar Pradesh, AIR 1981 SC 911; (1981) 2 SCC 166 that : " The plea of alibi postulates the physical impossibility of the presence of the accused at the seen of occurrence by reason of his presence at another place. The plea can, therefore, succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed." Again the Hon'ble Apex Court in Binay Kumar Singh vs. State of Bihar, (1997) 1 SCC 283, has held that : " We must bear in mind that an alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are 10 All. Kalim Asgar Vs. State of U.P. 687 relevant. Illustration (a) given under the provision is worth reproducing in this context : "The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant." The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi to prove it with absolute certainty. So as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened.