# Ramasankar Kushwaha & Ors v. State of U.P

- **Citation:** (2021) 11 ILRA 550
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-29
- **Case number:** Criminal Appeal No. 4025 of 2013
- **Bench:** Mrs. Sunita Agarwal, Mrs. Sadhna Rani (Thakur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramasankar-kushwaha-ors-v-state-of-u-p-46611
- **Pages:** 19

## Headnote

(A) Criminal Law - The Indian Penal Code, 1860
- Sections 147, 328/149, 302/149, 201 &
118/149 - The Code of criminal procedure,
1973 - Section 161 & 313 - appeal against
conviction - Circumstantial evidence - surmises
and conjectures - settled law - Prosecution has
to prove its case beyond reasonable doubt -
statement under Section 161 Cr.P.C. not on
oath, so such statement cannot be said to be
relied for bringing home the guilt of the
accused persons - where two views of the
prosecution story appear to be probable, the
one that is in favour of the accused should be
accepted - principle of Criminal Jurisprudence -
mere suspicion, however, strong it may be,
cannot take place of evidence . (Para -
59,60,67,72 )

(B) Criminal law - Indian Evidence Act, 1872 -
Section 101 (general rule) - Burden of proof ,
11 All. Ramasankar Kushwaha & Ors. Vs. State of U.P.
551
Section 106 (exception ) - Burden of proving
fact especially within knowledge - 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 - conviction and acquittal
of the accused depends upon the consistent of
criminological chain leading to only conclusion
of guilt of the accused - criminological chain
which invariably comprises of "who, when,
why, where and how". (Para - 25,69)

Written report by the brother of deceased (wife of the
accused) - narration - his sister and her children were
murdered in their house - thereafter, dead bodies
were thrown on the railway line - by the accused (his
brother-in-law) and his friends to give the incident a
colour of suicide - other accused persons had been
referred as friends of main accused in the FIR - trial
court convicted all the accused persons - hence
appeal.(Para - 83)

HELD:-The prosecution has failed to prove its case
beyond reasonable doubts. All the witnesses of fact
had turned hostile. Nothing incriminatory had come in
their cross examination. Thus, there is no evidence on
the record to bring home the guilt of the accused
persons. Judgment and order passed by court below
is found to have been passed on surmises and
conjectures. The same, therefore, is liable to be set
aside. The appellants accused persons are acquitted
of all the offences under which they are charged
giving them benefit of doubt. (Para - 88)

Criminal Appeal allowed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,900 of 70,708. This is a partial read: ask again with offset=39900 for what follows._

550 INDIAN LAW REPORTS ALLAHABAD SERIES

13. In Dilawar Singh v. State of
Haryana, (2015) 1 SCC 737, the Supreme Court
reiterated the same in paragraphs 36 and 37 as
under :

"36. The court of appeal would not
ordinarily interfere with the order of acquittal
unless the approach is vitiated by manifest
illegality. In an appeal against acquittal, this
Court will not interfere with an order of acquittal
merely because on the evaluation of the evidence,
a different plausible view may arise and views
taken by the courts below is not correct. In other
words, this Court must come to the conclusion
that the views taken by the learned courts below,
while acquitting, cannot be the views of a
reasonable person on the material on record.

36. In Chandrappa v. State of
Karnataka, the scope of power of appellate
court dealing with an appeal against acquittal
has been considered and this Court held as
under: (SCC p.432 para 42) "42....(4) An
appellate court, however, must bear in mind that
in case of acquittal, there is double presumption
in
favour
of
the
accused.
Firstly,
the
presumption of innocence is available to him
under the fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by the
trial court.

(5) If two reasonable conclusions are
possible on the basis of the evidence on record,
the appellate court should not disturb the finding
of acquittal recorded by the trial court."

Unless there are substantial and
compelling reasons, the order of acquittal is not
required to be reversed in appeal. It has been so
stated in State of Rajasthan v. Shera Ram."

14. In view of the aforesaid factual
backdrop, we are of the opinion that the appeal
lacks merit and is dismissed at the admission
stage.
----------
(2021)11ILR A550
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.10.2021

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE MRS. SADHNA RANI (THAKUR), J.

Criminal Appeal No. 4025 of 2013
with
Criminal Appeal No. 4160 of 2013

Ramasankar Kushwaha & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri
Chandra
Shekhar
Kushwaha,
Sri
Lav
Srivastava, Sri V.P. Srivastava ( Senior Adv.)

Counsel for the Respondents:
A.G.A.

(A) Criminal Law - The Indian Penal Code, 1860
- Sections 147, 328/149, 302/149, 201 &
118/149 - The Code of criminal procedure,
1973 - Section 161 & 313 - appeal against
conviction - Circumstantial evidence - surmises
and conjectures - settled law - Prosecution has
to prove its case beyond reasonable doubt -
statement under Section 161 Cr.P.C. not on
oath, so such statement cannot be said to be
relied for bringing home the guilt of the
accused persons - where two views of the
prosecution story appear to be probable, the
one that is in favour of the accused should be
accepted - principle of Criminal Jurisprudence -
mere suspicion, however, strong it may be,
cannot take place of evidence . (Para -
59,60,67,72 )

(B) Criminal law - Indian Evidence Act, 1872 -
Section 101 (general rule) - Burden of proof ,
11 All. Ramasankar Kushwaha & Ors. Vs. State of U.P.
551
Section 106 (exception ) - Burden of proving
fact especially within knowledge - 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 - conviction and acquittal
of the accused depends upon the consistent of
criminological chain leading to only conclusion
of guilt of the accused - criminological chain
which invariably comprises of "who, when,
why, where and how". (Para - 25,69)

Written report by the brother of deceased (wife of the
accused) - narration - his sister and her children were
murdered in their house - thereafter, dead bodies
were thrown on the railway line - by the accused (his
brother-in-law) and his friends to give the incident a
colour of suicide - other accused persons had been
referred as friends of main accused in the FIR - trial
court convicted all the accused persons - hence
appeal.(Para - 83)

HELD:-The prosecution has failed to prove its case
beyond reasonable doubts. All the witnesses of fact
had turned hostile. Nothing incriminatory had come in
their cross examination. Thus, there is no evidence on
the record to bring home the guilt of the accused
persons. Judgment and order passed by court below
is found to have been passed on surmises and
conjectures. The same, therefore, is liable to be set
aside. The appellants accused persons are acquitted
of all the offences under which they are charged
giving them benefit of doubt. (Para - 88)

Criminal Appeal allowed. (E-7)

List of Cases cited:-

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

2. Shambu Nath Mehra Vs The St. Of Ajmer, 1956 SC
404, 1956 Cr.L.J. 794

3. Chaudhary Razik Ram Vs Ch. J.S.Chauhan, AIR
1975 SC 667

4. Sucha Singh Vs St. of Punj., (2001) 4 SCC 375

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

6. Nupur Talwar Vs St. of U.P. & ors., 2018 (102) ACC 524

7. Mahabir Singh Vs St. of Har., (2001) 7 SCC 148

8. Devi Lal Vs St. of Raj., 2019 (19) SCC 447

9. Sharad Birdhichand Sarda Vs St. of Mah. 1984 SCC
(Crl) 487

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

11. Shivaji Sahabrao Babode & anr. Vs St. of Mah.,
1973 SCC (Crl) 1033

12. Dilavar Hussain & ors. Vs St. of Guj. & anr., 1991
SCC (Cri) 163

13. Amerika Rai & ors. Vs St. of Bihar, 2011 (4) SCC
677,

14. Dandu Jaggaraju Vs St. of A.P., 2011 (9) SCC
3387,

15. Ramchandran & ors. Vs St. of Kerala, 2011 (9)
SCC 257.

16. Shankarlal Gyarasilal Dixit Vs St. Of Mah., 1981
(2) SCC 35

(Delivered by Hon'ble Mrs. Sadhna Rani
(Thakur), J.)

1. As both the appeals arise from the same
incident and common judgment, we have heard
them together and they are being disposed of by
this common judgment.

2. Both the above mentioned criminal
appeals have been filed by the appellants
Ramashankar Kushwaha, Mohan Gaur, Ravindra
Prasad @ Doctor, Bacchan Gaur and Pappu @
Manoj Kumar Thakur against the judgment and
order dated 27.8.2013 passed by the learned
Additional Sessions Judge, Court No. 7, Deoria in
S.T. No. 219 of 2010 ( State Vs. Mohan Gaur and
others) whereby the appellants have been
convicted and sentenced under sections 147,
328/149, 302/149, 201 and 118/149 I.P.C. Police
station Bankata, Distrct Deoria.

3. As per the prosecution story, the first
information report was lodged by one Shakul Gaur
552 INDIAN LAW REPORTS ALLAHABAD SERIES
on 08.02.2010 at the police station Bhatni, District
Deoria stating therein that his sister Indu Devi was
married to Mohan Gaur son of late Baharan Gaur.
Out of their wedlock, they had three sons namely
Harikesh, Rakesh and Vikash and two daughters Sita
and Shilpi. His brother-in-law had developed bad
association and started taking liquor. He had
purchased a tractor after selling his land but due to his
bad habit of drinking, he had agreed to sell the tractor
to one Bhola Singh for Rs. 2,50,000/-. Out of the sale
amount, he took rupees one lac as advance and had
spent the money on his friends enjoying liquor. At
this, the complainant's sister namely, Smt. Indu Devi
asked Bhola Singh (the vendee of the tractor) to give
the rest of money in her hands so that she could
deposit the same in the bank. His brother-in -law (
Mohan Gaur) being annoyed with that had started
harassing his sister. She had narrated her plight to the
complainant and other family members. They tried to
pacify the matter but Mohan Gaur paid no heed. On
07.02.2010, they came across a news in the
newspaper that near Bankata railway station, six
people were crushed over by a train and died. They
suspected the dead bodies being of their sister and her
children. The complainant along with other villagers
then reached the railway station Bankata. The
complaint's brother Ajay and Vijay went to the
postmortem house and had identified the dead bodies
as of their sister, nephews and nieces. They cremated
the dead bodies in the village Bhaisahi. The house of
the complainant's sister was found to be washed and
cleaned. Near the railway line, the wheat crop was
lying down. It was asserted that the deceased persons
appeared to have been first murdered in their house in
the night and then to give the whole incident the
colour of suicide their dead bodies were thrown on
the railway line by the accused Mohan Gaur (his
brother-in-law) and his friends. Near the railway line,
no blood was found. The complainant stated that he
also came to know that upto 8.00 A.M. in the
morning on 6.2.2010 accused Mohan Gaur was in his
house and after that he had absconded.

4. Shrawan Kumar, the Assistant Station
Master, Bankata, reported the incident to the
G.R.P. Bhatni station at about 8.45 A.M. on
6.2.2010. Received the information, the police
concerned reached the spot, recorded the
requisite statements, prepared site plan, collected
samples of blood stained stones from the railway
track. The house of the deceased was also
searched wherefrom a bottle of liquor (Royal
Vat Premium Whisky) and a mobile phone
without SIM were recovered. Inquest reports
were prepared. The dead bodies were sent for
the postmortem on 6.2.2010. Near the railway
track, from the Corn-field of Nathuni Gupta one
woolen shawl was recovered. From the field of
Ram Sakal Maurya some broken pieces of red
bangles and red thread were recovered. From the
nearby wheat field of Indrajeet Maurya one steel
glass, one heir clip, one necklace, one plastic
bottle of liquor, a half piece of blade broken into
two pieces with its cover and one pen were
recovered. From the open field of Vijay Maurya,
recovery of one plastic glass, one liquor bottle of
'Banti - Babli', two pairs of plastic slippers had
been made, and one bottle of 'Banti-Babli' liquor
was recovered from the drain of Chakroad.

5. The recovery memos were prepared.
The Sub- inspector Gyan Prakash Pathak (P.W.-
11) took over the investigation, collected blood
stained stones from the place of recovery of
dead bodies and recovery memos were prepared.
During the investigation, the offence was
suspected to have been committed inside the
house of the deceased, so the investigation was
transferred to the police station Bankata on
9.2.2010.

6. The Police Officer, at P.S. Bankata
(P.W.10) started investigation on 12.2.2010
visited the house of the deceased on 13.2.2010,
and recorded requisite statements, prepared site
plan and arrested the accused Pappu @ Manoj
Kumar Thakur and Ravindra Prasad from the
market on 14.2.2010. He had recovered a shawl
used in wrapping and throwing the dead bodies
at the instance of accused Ravindra Prasad on
11 All. Ramasankar Kushwaha & Ors. Vs. State of U.P.
553
14.2.2010. Rest of the accused persons were also
arrested later. The statements of all the accused
persons were recorded. After receiving the post
mortem reports the viscera of the deceased
persons was sent to the Forensic Science
Laboratory Varanasi and Lucknow on 18.2.2010
along with the clothes of the deceased. From the
house of the deceased, two blood stained
shalwars were recovered on 13.2.2010. On
18.4.2010 and 29.4.2010, reports of the Forensic
Science Laboratory, Varanasi and Lucknow;
respectively, were received. In viscera report,
Aluminum Phosphate poison was found. The
first information report registered under section
302/ 201 I.P.C. was amended and Section 328
I.P.C. was added to the same. After completion
of the investigation charge sheet no. 44 / 10
under Sections 118, 147, 149, 34, 328, 302 and
201 I.P.C. was filed on 5.5.2010 against the five
accused persons namely Mohan Gaur, Ravindra
Prasad @ Doctor, Pappu @ Manoj Kumar
Thakur, Ramashanker Kushawaha and Bachchan
Gaur.

7. The learned trial court framed the
charges on 23.3.2011 against all the accused
persons under Sections 147, 328/149, 302/149,
201 and 118/149 I.P.C. For the prosecution, 18
witnesses were produced. The formal witnesses
proved the documents and materials filed by the
prosecution. The statements of accused persons
under Section 313 Cr.P.C. were recorded. No
defence evidence was adduced. The learned trial
court held the accused persons guilty under the
charged sections and passed the sentence,
accordingly.

8. The grounds to assail the judgment of
the learned trial court are:-

9. That the prosecution has failed to prove its
case beyond reasonable doubts. All the witnesses
of fact had been declared hostile. Nothing helpful
in their cross examination had come out which can
support the prosecution version. The entire
prosecution version and the impugned judgment
are based on suspicion. The appellant Pappu and
co-accused Mohan Gaur had enmity prior to the
alleged incident, and therefore, the association of
the appellants Pappu and Mohan Gaur to commit
the present offence is highly improbable. The trial
court had convicted all the accused persons being
swayed away by the gravity of the offence as six
persons had been put to death. The contention is
that in the alleged crime there is no cogent much
less material evidence on record to implicate the
accused persons beyond all reasonable doubts.

10. Heard the learned counsel for the
appellants and the learned A.G.A. for the State and
perused the record.

11. It is argued by the appellants counsel that
there is no eye witness of the alleged incident and
there is no witness of the last seen as well. The
case is of circumstantial evidence wherein the
chain of circumstances is no way complete.
Several links between the circumstances brought
forth by the prosecution are missing. There was no
motive for the accused persons for committing the
murder of the deceased persons. No incriminating
material had been recovered by the police from the
accused persons. Mere recovery of the liquor
bottles from here and there or to say that the
accused persons were drunkard will not make it a
case of conviction. There is nothing on record to
show that the poison was administered to the
deceased persons by any of the accused person.
Only one accused i.e Mohan Gaur, the brother-inlaw of the complainant ( husband and father of the
deceased persons) was initially named in the first
information report. All the other accused persons
whose names came into light during the
investigation are stated to the friends of the main
accused Mohan Gaur and on this premise only
they had been implicated in the crime by taking aid
of Section 149 I.P.C.

12. Per contra, the learned A.G.A. argued
that as the accused Mohan Gaur was a drunkard
554 INDIAN LAW REPORTS ALLAHABAD SERIES
person he used to harass his wife, the deceased
Indu Devi and their children. Just few days
before the incident, he had sold his tractor and
the advance money was spent by him on his
friends. The deceased Indu Devi was opposed to
the same and in order to get rid of her, the
accused Mohan Gaur had invited his friends on
feast and with their help, he had administered
poison to his wife namely Indu Devi and their
five children in fish curry and after their death
Mohan Gaur with the help of his abovenamed
friends threw the dead bodies on the railway
track to give the incident the colour of suicide.
From the viscera reports, it came into light that
all the deceased died of consuming "Aluminum
phosphate" poison and all the injuries found on
their persons were postmortem injuries. As it
was not possible for a single person, i.e. the
main accused Mohan Gaur to carry the dead
bodies to the railway track, it was established by
the prosecution that with the help of the coaccused persons after wrapping them in shawls,
the dead bodies were thrown on the railway
track. The police had also recovered one of such
shawls at the instance of the accused Ravindra
Prasad from the field of Nathuni Gupta after he
was arrested. The dead bodies of Sita and Shilpi
were said to have been wrapped in the said
shawl and thrown on the railway track. One
more shawl had been recovered by the police
from the Corn-field of Nathuni Gupta, on their
own.

13. It was also argued that the recovery of
a liquor bottle from the house of the deceased,
recovery of a plastic glass and two pairs of
slippers ( chappals) and a liquor bottle from the
field of Vijay Maurya, pieces of red bangles
from the field of Ram Sakal Maurya, recovery of
two shawls from the field of Nathuni Gupta,
recovery of one steel glass, one hair clip, blade,
liquor bottle, a pen and necklace ( mala ) from
the field of Indrajeet, show that the incident did
not occur at the railway track rather initially the
deceased persons were administered poison at
their residence and then with the help of the rest
of the accused persons dead bodies were
dragged to the railway line after wrapping them
in the shawls to cause disappearance of the
evidence and to give the incident the colour of
suicide.

14. It is vehemently argued that it was not
possible for a single person to carry all the dead
bodies to the railway track. This fact itself
clearly suggests the involvement of the husband
of the deceased i.e. brother-in-law of the
complainant as well as all the other accused
persons, moreover, all the accused persons had
feast that night at the residence of Mohan Gaur.
As per the prosecution case, the husband wanted
to get rid of his wife so he committed the
offence with the help of his friends. It is, thus,
argued that the involvement of the main accused
Mohan Gaur along with the other co-accused
cannot be ruled out.

15. From the appellants side, it is further
argued that the deceased persons had consumed
poison themselves because there was no motive
before the father to kill his young children and
there was no motive to murder his wife also.
There is no evidence of any quarrel prior to the
incident. There is no evidence of administering
poison by the accused persons to the deceased
nor there is any evidence of throwing the dead
bodies by them on the railway track. All the
witnesses of fact had turned hostile. Nothing
incriminatory
had
come
in
their
cross
examination. Thus, there is no evidence on the
record to bring home the guilt of the accused
persons. The prosecution can not take benefit of
Section 106 of the Evidence Act in absence of
any other evidence that the poison was
administered to the deceased in their house.
Only circumstance of being a drunkard or the
main accused Mohan Gaur having absconded
from his house after the incident would not be
the grounds to hold him guilty along with other
accused. The prosecution from any angle can not
11 All. Ramasankar Kushwaha & Ors. Vs. State of U.P.
555
be said to have proved its case beyond all
reasonable doubts. All the appellants deserve to
be acquitted, accordingly.

16. Considering the above submissions and
having perused the record, we may note that it is
an admitted fact that all the six dead bodies were
found on the railway track in the dismembered
condition. It has come out in the viscera report that
the death of all the deceased persons was caused
due to poisoning of Aluminum phosphate poison.
Postmortem reports reveal that all the injuries on
the persons of deceased were postmortem injuries.
There is no doubt, thus, that the deceased persons
were first poisoned and after their death with the
intention of causing disappearance of the evidence
of offence, their dead bodies were thrown on the
railway track.

17. As per the defence version, the
deceased had consumed poison themselves but
how their dead bodies had reached on the
railway track could not be explained. However,
the fact that the deceased persons were
administered poison by the accused persons is to
be proved by the prosecution.

18. The family lived together and all the
deceased persons were residents of one house
along with the main accused Mohan Gaur being
their husband / father, is an assumption to
implicate him as the accused who could have
administered poison to his whole family.
According to the prosecution, the onus as per
section 106 of the Evidence Act, is, thus, on the
accused Mahan Gaur to explain as to how the
deaths had been caused and how the dead bodies
had reached on the railway track.

19. On the issue of applicability of the
above provisions, both sections 101 ( the general
rule) and 106 ( exception to the same) of the
Evidence Act are relevant to be noted for ready
reference:-

20. Section 101:- Whoever desires any
Court to give judgment as to any legal right or
liability dependent on the existence of facts
which he asserts, must prove that those facts
exist. When a person is bound to prove the
existence of any fact, it is said that the burden of
proof lies on that person.

21. Section 106:- When any fact is
specially within the knowledge of any person,
the burden of proving that fact is upon him.

22. On the application of Section 106
Evidence Act, the judgment placed by the
learned Senior Counsel for the appellants are:-

23. In the case of Attygalle Vs. Emperor
1936 (38) Bombay LR 700 the Privy Council
held that Section 106 of the Evidence Act does
not affect the onus of prove and throw upon the
accused
the
burden
of
establishing
the
innocence.

24. In Shambu Nath Mehra vs The State
Of Ajmer, 1956 SC 404, 1956 Cr.L.J. 794, it
was held that the Section 106 of Evidence Act is
an exception to Section 101 which lays down
general rule that in a criminal case the burden of
proof is on the prosecution and Section 106 of
Evidence Act is certainly not intended to relieve
it of that duty.

25. In Shambhu Nath (supra), it was held
by the Apex Court 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
556 INDIAN LAW REPORTS ALLAHABAD SERIES
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. If the section were to be interpreted
otherwise, it would lead to the very startling
conclusion that in a murder case the burden lies
on the accused to prove that he did not commit
the murder because who could know better than
he whether he did or did not. It is evident that
cannot be the intention and the Privy Council
has twice refused to construe this section, as
reproduced in certain other Acts outside India,
to mean that the burden lies on an accused
person to show that be did not commit the crime
for which he is tried. These cases are Attygalle
v. Emperor(1) and Seneviratne v. R. (2).

12. Illustration (b) to section 106 has
obvious reference to a very special type of case,
namely to offences under sections 112 and 113
of the Indian Railways Act for travelling or
attempting to travel without a pass or ticket or
with an insufficient pass, etc. Now if a passenger
is seen in a railway carriage, or at the ticket
barrier, and is unable to produce a ticket or
explain his presence, it would obviously be
impossible in most cases for the railway to
prove, or even with due diligence to find out,
where he came from and where he is going and
whether or not be purchased a ticket. On the
other band, it would be comparatively simple for
the passenger either to produce his pass or
ticket or, in the case of loss or of some other
valid explanation, to set it out; and so far as
proof is concerned, it would be easier for him to
prove the substance of his explanation than for
the State to establish its falsity.

13. .............................................

This is a section which must be
considered in a commonsense way; and the
balance of convenience and the disproportion
of the labour that would be involved in finding
out and proving certain facts balanced against
the triviality of the issue at stake and the ease
with which the accused could prove them, are
all
matters
that
must
be
taken
into
consideration. The section cannot be used to
undermine the well established rule of law
that, save in a very exceptional class of case,
the burden is on the prosecution and never
shifts."

26. In the judgment of Chaudhary
Razik Ram Vs. Ch. J.S.Chauhan, AIR 1975
SC 667, it was held that the principle
underlying Section 106 of the Evidence Act
which is an exception to the general rule
governing the burden of prove applies only to
such matter of defence which are supposed to
be specially within the knowledge of the
defendant respondent. It cannot apply when
the fact is such as to be capable of being
known also by the persons other than the
respondent.

27. In Sucha Singh Vs. State of Punjab
(2001) 4 SCC 375, it was held that:-

"19. Section 106 of the Evidence Act
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 succeeded in proving facts for which a
reasonable inference can be drawn regarding
the existence of certain other facts, unless the
accused by virtue of special knowledge
regarding such facts failed to offer any
explanation which might drive the court to
draw a different inference".

28. In Vikramjit Singh Vs. State of
Punjab, (2006) 12 SCC 306, the Supreme Court
held that Section 106 of 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
11 All. Ramasankar Kushwaha & Ors. Vs. State of U.P.
557
such facts which was within the special
knowledge of the accused the onus may be
shifted to the accused for explaining the same
subject to certain statutory exceptions.

29. In Vikramjit Singh Alias Vicky
(supra), the discussion in paragraph Nos.14 & 15
are relevant to noted as 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.

30. In the judgment of Nupur Talwar vs.
State of UP and others, 2018 (102) ACC 524,
the Division Bench of this Court had extensively
dealt with the consequence of Section 106 of the
Evidence Act by referring to the landmarks
decisions of the Apex Court and held in
paragraphs Nos.246, 247, 248 & 249:-

"246. Thus, what follows from the
reading of the law reports referred to herein
above, is that 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 can not be applied to
fasten guilt on the accused, even if the
prosecution has failed in its initial burden.

247. Section 101 to Section 114A of
Chapter-VII of the Indian Evidence Act, 1872
deal with subject "OF THE BURDEN OF
PROOF." Section 106 of the Indian Evidence
Act provides that when any fact is especially
within the knowledge of any person, the burden
of proof to prove that fact is upon him. Section
106 is an exception to Section 101 of the
Evidence Act which stipulates that whoever
desires any Court to give judgment as to any
legal right or liability dependent on the
existence of facts which he asserts must prove
that those facts exist. 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. It is only when prosecution, for well
perceptible and acceptable reasons, is unable to
lead evidence because of circumstances beyond
it's control including the reason that 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 divulge
that fact which is "in his special knowledge" and
if accused fails to offer any reasonable
explanation
to
satiate
judicial
inquisitive
scrutiny, he is liable to be punished. Section 106
is not meant to be utilized to make up for the
prosecution's inability to establish its case by
leading, cogent and reliable evidence.

248. However once the prosecution
establishes entire chain of circumstances
558 INDIAN LAW REPORTS ALLAHABAD SERIES
together in a conglomerated whole unerringly
pointing out that it was accused alone who was
the perpetrator of the crime and the manner of
happening of the incident could be known to him
alone and within his special knowledge,
recourse can be taken to section 106 of the
Evidence Act. Aid of Section 106 of the Evidence
Act can be invoked only in cases where
prosecution could produce evidence regarding
commission of crime to bring all other
incriminating
circumstances
and
sufficient
material on record to prima-facie probablise its
case against the accused and no plausible
explanation is forthcoming from the accused
regarding fact within his special knowledge
about the incident.

249. Section 106 of the Evidence Act
lays down only this much that if a fact is in the
"special knowledge of a person" and other side
could not have due knowledge of it in spite of
due diligence and care then burden of proving
that fact lies on such person in whose special
knowledge it is."

31. Placing reliance upon the above
decisions, the learned counsel for the appellants
had argued that as it was incumbent the
prosecution to establish by cogent and reliable
evidence
inter-alia
that
the
poison
was
administered to the deceased persons by the
accused Mohan Gaur in connivance with the other
accused persons and all the accused persons then
collectively threw the dead bodies on the railway
track.

32. It was further argued that Section 106 of
the Evidence Act can not be understood to provide
that the prosecution is absolved of its burden from
proving its case and the burden of proving the
entire case was entirely upon the accused persons.

33. Having carefully gone through the above
decisions and the related law in the light of the
language of Section 101 of the Evidence Act, there
can be no two opinions that it was the duty of the
prosecution to prove that the fact, 'as to how and
when the deceased persons had consumed or
administered poison', was within the special
knowledge of the husband of the deceased Indu
Devi, the main accused Mohan Gaur. The
prosecution is not relieved of its burden to prove
the existence of the said fact; or in other words, the
presence of the accused Mohan Gaur either alone
or along with other accused persons in his house at
the time when the deceased had consumed or
administered poison was to be proved by the
prosecution.

34. From the facts on the record, it is evident
that there is no eye witness or the witness of the
last seen of either the incident or the presence of
the accused persons much less the accused Mohan
Gaur, the husband / father in the house on the date
of the incident. This case admittedly is of
circumstantial
evidence
and
the
chain
of
circumstances has to be completed by the evidence
lead by the prosecution. The explanation of the
main accused to discharge the onus laid upon him,
if any, once prosecution discharged its initial
burden, as per Section 106 of the Evidence Act,
would be only an additional circumstance. To put
it differently, the silence of the accused in the
above situation would be only a link in the chain of
the circumstances put forth by the prosecution. In
any case, the burden to prove the existence of the
circumstances leading to the guilt of the accused
cannot be shifted entirely on the accused Mohan
Gaur as he, in any case, cannot be asked to prove
his innocence.

35. The prosecution had produced as many
as 18 witnesses. Out of whom 12 are witnesses of
fact. None of them had supported the prosecution
version and all of them had been declared hostile
and had been cross-examined by the Public
Prosecutor.

36. P.W.-1 and 2, brothers of the deceased
Indu Devi, were admittedly the residents of
11 All. Ramasankar Kushwaha & Ors. Vs. State of U.P.
559
another village. They came to know about the
incident through a local newspaper. They then
went to the police station concerned and had
identified the dead bodies and lodged the first
information report. P.W.-1 Shakul Gaur had
deposed that his sister and her husband who
were married for 26 years were having cordial
relations. There was no suggestion of any fight
or quarrel between them and his sister had never
complained against her husband. In the cross
examination, this witness had clearly denied his
statement recorded under section 161 Cr.P.C.
and stated that his brother-in-law (Mohan Gaur)
was working outside the village for the last 3-4
months prior to the incident and came back only
after getting the information of the incident.
Regarding the first information report, he had
stated that it was written on the dictation of the
police and he had just put his signatures on it.
He did not even know the scribe of the F.I.R. He
had denied that the contents of the F.I.R. were
read over or explained to him. He had also
denied the presence of co-accused Pappu @
Manoj Kumar Thakur in the village on the date
of the incident.

37. P.W.-2 Ajay Prasad, another brother
of the deceased Indu Devi had stated that he had
identified the dead bodies of his sister and her
children in the postmortem house. He denied his
statement under section 161 Cr.P.C. having been
recorded by the police and stated that when they
reached at the residence of his sister, the accused
Pappu @ Manoj Kumar Thakur was out of the
village for employment.

38. P.W.-3 Nanhe Giri who was projected
as the witness of last seen, i.e. spotting the
accused persons carrying the dead bodies had
denied that he saw Ramashankar, Ravindra,
Bacchan Gaur, Manoj and Mohan Gaur carrying
/ something hanging. Rather he had asserted that
he was sleeping in his house with his family. In
his main and cross examination, he had
categorically denied his version recorded under
Section 161 Cr.P.C. that he did go to the
Bankata Railway Station to catch the train on the
fateful night of 5/6.2.2010 and while returning
back for the train being late, he witnessed the
accused persons carrying something.

39. P.W.-4 Chandra Shekhar Giri, the
witness of extra judicial confession of the
accused Ravindra Prasad @ Doctor and Pappu
@ Manoj Thakur stated that on 13.2.2010, they
did not come at the gate of the house of Thakur
Ajay Singh when he was present and nor there
was any talk of the feast having been arranged at
the house of accused Mohan Gaur. This accused
had denied his statement under section 161
Cr.P.C. and he having any knowledge about the
incident.

40. P.W.- 5 Rudal Kushwaha though had
verified his signatures on the inquest report but
stated that his signatures were taken on the blank
papers and his 161 statement was also recorded
at the dictation of the Investigating Officer. He
had denied having knowledge regarding the
incident. He had stated that he reached the
railway station on getting the news and was part
of the crowd collected on the spot.

41. P.W.-6 Sudhir Chandra Shah had
stated that on 6.2.2010, the night of the incident
he did not see the accused persons sitting and
enjoying feast in the house of Mohan Gaur. In
the cross examination, this witness had stated
that Pappu @ Manoj Thakur and Mohan Gaur
are having some property dispute and for the last
5-7 years prior to the incident, they were not on
the talking terms and Pappu @ Manoj generally
remained outside the village in relation of his
job and on the date of incident he was not in the
village.

42. P.W.-7 Hasanu Ali had stated that the
work of digging the pond under 'MANREGA'
was going on which was being supervised by
Pradhanpati
Sri
Rama
Shankar
Kuswaha
560 INDIAN LAW REPORTS ALLAHABAD SERIES
(accused). On 5.2.2010, Bacchan Gaur and
Mohan Gaur did not come to the pond nor the
accused persons sat near the pond to enjoy
liquor. No such incident of consumption of
liquor had occurred near the pond on 5.2.2010.
In the cross examination, he had denied his
statement under Section 161 Cr.P.C. and that he
met the Investigating Officer to record the said
statement.

43. P.W. 14 Bhola Singh stated that he
had no knowledge about Mohan Gaur being a
drunkard type of person nor any dispute between
him and his wife about the money for the sale of
tractor. He stated that the tractor was purchased
by him in the year 2009 for Rs. 2,65,000/- and
that he had paid the entire money in one go. This
witness had also denied his statement under
Section 161 Cr.P.C. and stated that he never met
the Investigating Officer and came to know
about the incident after about 10 days.

44. P.W.-15 Ajay Kumar had refused to
acknowledge the recovery of one shawl from the
field of Nathuni Gupta in his presence. In his
cross examination, he had stated that some
property dispute was going on between Mohan
Gaur and Manoj Thakur prior to the incident.

45. P.W.- 16 Ram Narain a worker in the
country liquor shop located near the railway
station in his evidence had refused to identify
the accused persons and had stated that he did
not witness them coming to his shop with
Mohan Gaur, and on the date when dead bodies
were found he was on leave. He did not even
know the Mauja or the police station where
accused persons were residing. This witness had
also denied his statement under Section 161
Cr.P.C.

46. P.W.-17 Kundan Gaur a worker in
'MANREGA' scheme stated that he was working
on the pond on 5.2.2010 but denied having
knowledge about any feast having been arranged
on the fateful day / night of 5.2.2010 at the
residence of the accused Mohan Gaur. He had
denied having witnessed the accused persons
together anywhere anytime on 5.10.2010.

47. P.W.-18 Dharmendra Madhesiya had
denied having knowledge of the fact that on
5.2.2010, Bachchan Gaur had purchased liquor
from the liquor shop where he was working and
that the accused persons used to come to the
shop to enjoy the liquor.

48. Rest of the prosecution witness are
formal witnesses who had proved the documents
prepared by them and recoveries made before
them.

49. From the above statements of fact, it is
clear that all the witnesses of fact did not support
the prosecution story.