# Shiv Kumar and Anr v. State of U.P

- **Citation:** (2019) 1 ILRA 910
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-17
- **Bench:** Ved Prakash Vaish, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-kumar-and-anr-v-state-of-u-p-44501
- **Pages:** 12

## Headnote

A. Indian Evidence Act - Section 106murder
of
wife-motive
-
accused
husband of the deceased - prosecution
lead evidence of last seen, shortly before
commission of crime at the dwelling
house Settled law - if accused does not
offer or offers an explanation which is
found to be false, as to injury received by
wife, it is strong circumstance that
committed the offence.
Section 106 , Indian Evidence Act,1872 fully
establishes guilt of accused/appellant and
chain of evidence is so complete as not to
leave any reasonable ground for a conclusion
consistent with innocence of accused. (Para 20
to 30, 32, 33, 36 & 42).

Appeal dismissed.

Case law discussed:

## Text

910 INDIAN LAW REPORTS ALLAHABAD SERIES

"Section 7A. Procedure to be
followed when claim of juvenility is
raised before any court-(1) Whenever a
claim of juvenility is raised before any
court or a court is of the opinion that an
accused person was a juvenile on the date
of commission of the offence, the court
shall make an inquiry, take such evidence
as may be necessary (but not an affidavit)
so as to determine the age of such person,
and shall record a finding whether the
person is a juvenile or a child or not,
stating his age as nearly as may be:

Provided
that
a
claim
of
juvenility may be raised before any court
and it shall be recognised at any stage,
even after final disposal of the case, and
such claim shall be determined in terms of
the provisions contained in this Act and
the rules made thereunder, even if the
juvenile has ceased to be so on or before
the date of commencement of this Act.

(2) If the court finds a person to
be a juvenile on the date of commission of
the offence under sub-section (1), it shall
forward the juvenile to the Board for
passing appropriate orders and the
sentence, if any, passed by a court shall
be deemed to have no effect."

"Rule 98. Disposed off cases of
juveniles in conflict with law.-The State
Government or as the case may be the
Board may, either suo motu or on an
application made for the purpose, review
the case of a person or a juvenile in
conflict with law, determine his juvenility
in terms of the provisions contained in the
Act and rule 12 of these rules and pass an
appropriate order in the interest of the
juvenile in conflict with law under section
64 of the Act, for the immediate release of
the juvenile in conflict with law whose
period of detention or imprisonment has
exceeded the maximum period provided in
section 15 of the said Act."

11. Having examined the provisions
of Section 7 A of Act 2000 and the Rule
98 of the Rules 2007, we are of the
considered opinion, in the facts of the
case,
that
the
appropriate
remedy
available to the appellant is to approach
the Juvenile Justice Board / State
Government for appropriate order being
made in the matter of his release if he has
been confined to imprisonment exceeding
the maximum period provided under
Section 15 of the Act, 2000. The
application under Section 7A of the Act
2000, as presented in the appeal which
stood finally decided under the judgment
and order of this Court dated 05.10.2007,
appears to be wholly misconceived.

12. The application is dismissed
with liberty to the petitioner to seek his
remedy accordingly.

13. This order is however subject to
the appeal, if any, filed against the order
of the Juvenile Justice Board declaring the
applicant to be a juvenile on the date of
incident.
-------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.09.2019

BEFORE
THE HON'BLE VED PRAKASH VAISH, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

CRIMINAL APPEAL No. 2405 OF 2006

Shiv Kumar and Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Karuna Shanker Rastogi, Sri Dharm
Trivedi, Sri J.P. Yadav, Sri Manoj Kumar
Misra, Sri Nishit Upreti, Sri Shiv S. E.
Chitamber,
Sri
Soniya
Mishra
1 All. Shiv Kumar and Anr. Vs. State of U.P.
911
Counsel for the Opposite Party:
Govt. Advocate

A. Indian Evidence Act - Section 106murder
of
wife-motive
-
accused
husband of the deceased - prosecution
lead evidence of last seen, shortly before
commission of crime at the dwelling
house Settled law - if accused does not
offer or offers an explanation which is
found to be false, as to injury received by
wife, it is strong circumstance that
committed the offence.
Section 106 , Indian Evidence Act,1872 fully
establishes guilt of accused/appellant and
chain of evidence is so complete as not to
leave any reasonable ground for a conclusion
consistent with innocence of accused. (Para 20
to 30, 32, 33, 36 & 42).

Appeal dismissed.

Case law discussed:
1. (2008) 3 SCC 210
2. (2010) 8 SCC 593
3. 1989 Supp (2) SCC 706
4. (2005) 3 SCC 114
5 .(2016) 1 SCC 501
6.(2000) 8 SCC 382
7. (2001) 8 SCC 311
8. 1944 AC 315
9. (2017) SCC OnlineDelhi 7343
 (E-6)
(Delivered by Hon'ble Ved Prakash
Vaish, J.)

1. Heard Ms. Soniya Mishra, learned
counsel for the appellants and Sri Umesh
Verma, learned Addl. G.A. for the State.

2. The challenge in this appeal is to
the judgment dated 15.11.2006 passed by
learned
Additional
Sessions
Judge
(F.T.C.-2), Lakhimpur Kheri, in Sessions
Trial Case No.778 of 2001, whereby the
appellants were convicted for the offence
under Sections 302/34 of the Indian Penal
Code (hereinafter referred to as "I.P.C.")
and both the appellants were sentenced to
undergo imprisonment for life and to pay
a fine of Rs.5,000/- each, in default of
payment of fine to further undergo
imprisonment for three months.

3. Background facts as projected by
the prosecution to fasten guilt on the
appellants are as follows:-

4. Sri Om Prakash Dixit father of the
deceased lodged a complaint that his
daughter, namely, Smt. Meena was
married with appellant No.1, Shiv Kumar
on 28.06.1982; Smt. Meena was turned
out
of
her
matrimonial
house
on
01.04.1984. Smt. Meena then filed a
petition for maintenance in June, 1985
and in the written statement of the said
petition, the appellant No.1, Shiv Kumar
denied the factum of marriage with Smt.
Meena, but vide order dated 19.09.1990,
the
court
awarded
maintenance
@
Rs.200/- per-month; appellant No.1; Shiv
Kumar filed a revision petition against the
said
order
which
was
dismissed.
Thereafter, the appellant No.1, Shiv
Kumar went to the house of complainant
and sought pardon and took back Smt.
Meena on 20.02.1998; during the said
period, complainant used to inquire about
the wellbeing of his daughter. On
04.08.1998, the complainant received an
information that his daughter, Smt. Meena
was unwell and when he went to the
house of the appellants, he found the dead
body of his daughter in his house and the
same appeared to be an old one and stink
was coming and there were injuries on the
forehead and body had become blue; the
complainant lodged a complaint at Police
Station Pasangva on 05.08.1998, the same
was registered by the Police in General
Diary (G.D.) but no First Information
Report (hereinafter referred to as "F.I.R.")
was registered. Later on, the complainant
912 INDIAN LAW REPORTS ALLAHABAD SERIES
came to know that his daughter was killed
by appellant No.1, Shiv Kmar and his
parents due to demand of dowry and
award
of
maintenance.
Then,
the
complainant gave a typed complaint to the
Superintendent of Police, Kheri on
23.08.1998, on the basis of said complaint
F.I.R. No.139 of 1998 (case crime
No.246/1998) for the offence under
Section 302 I.P.C. was registered against
Shiv Kumar, Ram Sahaya and Smt.
Munni
Devi
on
05.09.1998.
After
completion of investigation, chargesheet
for the offence under Section 302 I.P.C.
against the appellants/accused, namely,
Shiv Kumar and Ram Sahaya was filed.

5. After complying with the provisions
of Section 207 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as
"Cr.P.C."), the challan was committed to
learned Sessions Judge, Kheri. After haring
arguments on charge, learned Additional
Sessions Judge, Kheri found a prima facie
case to try both the accused/appellants for the
offence under Section 302/34 of I.P.C.
Accordingly, charge under Sections 302/34
I.P.C. was framed on 20.09.2002. The
appellants pleaded not guilty to the charge and
claimed trial.

6. Vide order dated 24.01.2004, learned
Additional Sessions Judge summoned Smt.
Munni Devi under Section 319 of Cr.P.C.
Thereafter, charge under Sections 302/34
I.P.C was framed against Smt. Munni Devi on
24.07.2004, she pleaded not guilty to the
charge and claimed trial.

7. During trial, accused Smt. Munni
Devi died and the proceedings against her
were abated vide order dated 27.08.2004.

8. In order to bring home the guilt of
the appellants, the prosecution examined
as many as seven witnesses. PW-1 Sri
Brijesh Kumar is a witness of inquest
report, he has proved panchayatnama
(inquest report) as Ex. KA-1. PW-2 Sri
Shyam Bihari did not support the case of
prosecution and he was declared hostile.
PW-3 Sri Rakesh Kumar Dixit is the
brother of the deceased. He has deposed
that his father, namely, Omprakash Dixit
(complainant) died on 04.06.2001. He has
proved the complaint lodged by his father
as Ex. KA-2. PW-4 Dr. A.K. Tyagi,
Radiologist, District Hospital conducted
autopsy on the body of the deceased and
he has proved the postmortem report as
Ex. KA-3. PW-5 S.I. Dinesh Kumar
Singh is the first Investigating Officer, he
has deposed that he prepared site plan on
pointing out of the complainant which is
Ex. KA-5. He deposed about various steps
taken by him, he has proved the seizure
memo
of
seal,
request
letter
for
conducting
postmortem
and
other
documents as Ex. KA-6 to Ex. KA-10.
PW-6 Inspector M.P. Singh is the second
Investigating Officer, he has deposed that
after transfer of S.I. Dinesh Kumar Singh,
investigation was handed over to him, he
received the viscera report, on 12.01.1999
accused Shiv Kumar and Ram Sahaya
were
arrested,
after
completion
of
investigation he prepared chargesheet
which is Ex. KA-11. PW-7 Constable
Rudra Pratap Tripathi recorded F.I.R. and
proved copy of F.I.R. as Ex. KA-12 and
copy of kayami report as Ex. KA-13.

9. After completion of prosecution
evidence, statement of both the accused
persons under Section 313 of Cr.P.C. was
recorded and incriminating evidence was
put to them, the accused persons denied
the same and claimed that they are
innocent. Appellant No.1, Shiv Kumar
stated that the deceased Smt. Meena had
1 All. Shiv Kumar and Anr. Vs. State of U.P.
913
gone to the house of her parents because
she did not like the lifestyle of the
appellants, her father took her to his
house; he is an agriculturist and for that
purpose he used to keep pesticide for the
safety and maintenance of crops, deceased
was using and keeping the pesticide and it
may be that she had consumed the same
by mixing in the food article by mistake.
Appellant
No.2,
Ram
Sahaya
also
reiterated
the
same.
The
accused
persons/appellants chose to lead defence
evidence but did not examine any defence
witness. On 28.08.2006, the appellants
closed their evidence and thereafter filed
written submissions.

10. After considering the rival
contention of the parties and appreciating
the evidence on record, learned trial court
found the appellants to be guilty having
committed the offence under Section
302/34 I.P.C. and sentenced the appellants
vide impugned judgment and order dated
15.11.2006.

11. Being aggrieved by the said
judgment and order dated 15.11.2006, the
appellants have filed the present criminal
appeal.

12. During the pendency of the
appeal, the appellant no.2, Ram Sahaya
S/o Dori died on 15.08.2016 and the
appeal in respect of appellant No.2, Sri
Ram Sahaya was dismissed as abated vide
order dated 17.07.2019.

SUBMISSIONS ON BEHALF OF
THE PARTIES

13. Learned counsel for the
appellants urged that appellant No.1, Shiv
Kumar is the husband of the deceased,
Smt. Meena, the marriage between the
deceased and appellant No.1, Shiv Kumar
was solemnized on 28.06.1982, no child
was born out of the said wedlock and
Smt. Meena died on 04.08.1998. The
F.I.R. was registered on 05.09.1998 after
delay of one month and there is no
explanation for the delay. He also
submitted
that
the
complainant,
Omprakash Dixit was not examined.

14. Learned counsel for the
appellants submitted that the case of
prosecution is based on circumstantial
evidence; there is no direct evidence
available on record. He further submitted
that the case of prosecution is based on
the testimonies of Rakesh Kumar Dixit
(PW-3) who is brother of the deceased
and
Dr.
A.K.
Tyagi
(PW-4)
who
conducted postmortem on the body of the
deceased; statement of Sri Rakesh Kumar
Dixit cannot be relied upon to convict the
appellants.

15. Lastly, learned counsel for the
appellants contended that the appellants
are agriculturists, the deceased used to
keep pesticide for safety and maintenance
of crops and it may be that the deceased
had consumed the same by mixing it in
food articles by mistake. According to
him, the conviction under Sections 302/34
of I.P.C. is not proper and the evidence on
record attracts Section 306 of I.P.C.

16. Per contra, learned Addl. G.A.
for
the
State
submitted
that
the
prosecution has been able to prove its
case on the basis of oral evidence and also
postmortem report. He also submitted that
the alleged incident is corroborated by the
testimony of Rakesh Kumar Dixit (PW-3)
and Dr. A.K. Tyagi. He further submitted
that the motive for causing death was that
the deceased had no issue and the demand
914 INDIAN LAW REPORTS ALLAHABAD SERIES
of dowry was not fulfilled by the
deceased and her father.

17. Learned Addl. G.A. for the State
supported the case of the prosecution and
submitted that the testimony of all the
prosecution witnesses unerringly pointed
towards the guilt of the appellants.

18. Learned Addl. G.A. for the State
also submitted that the autopsy on the
body of the deceased was got conducted
on 06.08.1998, as per the postmortem
report (Ex. KA-3), probable time since
death was about 3-5 days. According to
him, if the deceased died about 3-5 days
before the postmortem, the appellants
should have informed to her parents on
the day when she died but no information
was given to the parents of the deceased.

19. We have given our anxious
thought to the submissions advanced by
learned counsel for the appellants and
learned Addl. G.A. for the State and also
carefully perused the material available
on record.

LAW
RELATING
TO
CIRCUMSTANTIAL EVIDENCE

20. Before venturing into rival
submissions advanced on behalf of the
parties, it is relevant to mention here that
there is no eye witness to the incident.
The
prosecution's
case
rests
on
circumstantial evidence. This Court is of
the view, when the case of prosecution is
based upon the circumstantial evidence,
the circumstances should be conclusively
proved and point to the guilt of the
accused. The circumstances should not be
compatible with any hypothesis except
with the guilt of the accused. The law in
this regard is fairly well settled. The
Hon'ble Supreme Court in the case of
'Sattatiya
Alias
Satish
Ranjanna
Kartalla vs. State of Maharashtra',
(2008) 3 SCC 210, in para-10 and 17made
following observations:

"10.
We
have
thoughtfully
considered the entire matter. It is settled
law that an offence can be proved not
only by direct evidence but also by
circumstantial evidence where there is no
direct evidence. The court can draw an
inference
of
guilt
when
all
the
incriminating facts and circumstances are
found to be totally incompatible with the
innocence of the accused. Of course, the
circumstances from which an inference as
to the guilt is drawn have to be proved
beyond reasonable doubt and have to be
shown to be closely connected with the
principal fact sought to be inferred from
those circumstances.

17. At this stage, we also deem
it proper to observe that in exercise of
power
under
Article
136
of
the
Constitution, this Court will be extremely
loath to upset the judgment of conviction
which is confirmed in appeal. However, if
it is found that the appreciation of
evidence in a case, which is entirely based
on circumstantial evidence, is vitiated by
serious errors and on that account
miscarriage
of
justice
has
been
occasioned, then the Court will certainly
interfere
even
with
the
concurrent
findings recorded by the trial court and
the High Court. In the light of the above,
we shall now consider whether in the
present case the prosecution succeeded in
establishing the chain of circumstances
leading to an inescapable conclusion that
the appellant had committed the crime."

21. In another case titled as 'G.
Parshwanath vs. State of Karnataka',
1 All. Shiv Kumar and Anr. Vs. State of U.P.
915
(2010) 8 SCC 593, the Hon'ble Supreme
Court made the following observations
when considering a case hinging on
circumstantial evidence:

"23. In cases where evidence is of a
circumstantial nature, the circumstances from
which the conclusion of guilt is to be drawn
should, in the first instance, be fully
established. Each fact sought to be relied
upon must be proved individually. However,
in applying this principle a distinction must be
made between facts called primary or basic
on the one hand and inference of facts to be
drawn from them on the other. In regard to
proof of primary facts, the court has to judge
the evidence and decide whether that evidence
proves a particular fact and if that fact is
proved, the question whether that fact leads to
an inference of guilt of the accused person
should be considered. In dealing with this
aspect of the problem, the doctrine of benefit
of doubt applies. Although there should not be
any missing links in the case, yet it is not
essential that each of the links must appear on
the surface of the evidence adduced and some
of these links may have to be inferred from the
proved facts. In drawing these inferences, the
court must have regard to the common course
of natural events and to human conduct and
their relations to the facts of the particular
case. The Court thereafter has to consider the
effect of proved facts."

22. The legal position in case based
on
circumstantial
evidence
was
summarized by the Hon'ble Supreme
Court in 'Padala Veera Reddy vs. State
of Andhra Pradesh and others', 1989
Supp (2) SCC 706, as under:-

"(1) The circumstances from
whch an inference of guilt is sought to be
drawn, must be cogently and firmly
established;

(2) those circumstances should
be of a definite tendency unerringly
pointing towards guilt of the accused;

(3) the circumstances, taken
cumulatively, should form a chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by
the accused and none else; and

(4) the circumstantial evidence
in order to sustain conviction must be
complete and incapable of explanation of
any other hypothesis than that of the guilt
of the accused and such evidence should
not only be consistent with the guilt of the
accused but should be inconsistent with
his innocence."

LAST SEEN THEORY

23. We would first like to discuss
the evidence of last seen. The prosecution
has relied upon the testimonies of PW-1,
Brijesh Kumar and PW-3, Rakesh Kumar
Dixit
as
being
relevant
for
this
circumstance. Of these, only PW-3,
Rakesh Kumar Dixit is the witness who
has actually spoken about the deceased
being last seen in the company of the
appellants at her matrimonial home. First,
turning to the evidence of Rakesh Kumar
Dixit
(PW-3),
he
has
categorically
deposed that his father, Omprakash Dixit
received
an
information
from
the
matrimonial home of the deceased that
she is not well and thus, his father visited
there and found dead body of the
deceased. The picture that emerges from
the above discussion is that PW-3, Rakesh
Kumar Dixit was consistent that dead
body of the deceased was recovered from
the house of appellants only.

24. The fact that the dead body of
the deceased was found 3-5 days later, on
04.08.1998 when the complainant visited
916 INDIAN LAW REPORTS ALLAHABAD SERIES
to the house of appellants to meet his
daughter and that too on the information
received by him that his daughter was not
well at her matrimonial house, which
makes this circumstance of last seen a
strong
piece
of
evidence
qua
the
appellants. The legal position in this
regard has been explained by the Hon'ble
Supreme Court in the case of 'State of
U.P. vs. Satish', (2005) 3 SCC 114:

"22. The last-seen theory comes
into play where the time-gap between the
point of time when the accused and the
deceased were last seen alive and when
the deceased is found dead is so small
that possibility of any person other than
the accused being the author of the crime
becomes impossible. It would be difficult
in some cases to positively establish that
the deceased was last seen with the
accused when there is a long gap and
possibility of other persons coming in
between exists. In the absence of any
other positive evidence to conclude that
the accused and the deceased were last
seen together, it would be hazardous to
come to a conclusion of guilt in those
cases. In this case there is positive
evidence that the deceased and the
accused were seen together by witnesses
PWs 3 and 5, in addition to the evidence
of PW 2."

25. In another case of 'State of
Karnataka vs. Chand Basha', (2016) 1
SCC 501, the Hon'ble Supreme Court
explained:

"14.....................This Court has
time and again laid down the ingredients
to be made out by the prosecution to
prove the 'last seen together' theory. The
Court for the purpose of arriving at a
finding as to whether the said offence has
been committed or not, may take into
consideration the circumstantial evidence.
However, while doing so, it must be borne
in mind that close proximity between the
last seen evidence and death should be
clearly established."

DEATH OF DECEASED BEING
HOMICIDAL IN NATURE

26. The death of the deceased Smt.
Meena
Devi
W/o
Shiv
Kumar
is
homicidal
and
not
natural.
The
prosecution has examined Dr. A.K. Tyagi
(PW-4)
who
conducted
postmortem
examination on the body of the deceased
on 06th August, 1998 at 03.00 PM in
District
Hospital,
Lakhimpur
Kheri.
According to the postmortem report Smt.
Meena was aged about 40 years, young
lady of good built, R.M. passed off from
both upper and lower extremities, PM
staring on back-liquifide, skin pealed off
at places over the body, abdomen
distended, scalp hairs missing, maggots
present over the body. The time since
death was about 3-5 days. The doctor who
conducted postmortem could not ascertain
the cause of death and viscera was
preserved.

27. The viscera report (Ex. KA-4)
reveals that malathion (organophosphate
insecticide) was present in stomach,
intestine, liver and kidney.

SECTION 106 OF THE INDIAN
EVIDENCE ACT, 1872

28. The appellants-accused in their
statements under Section 313 of Cr.P.C.
have simply denied the allegations against
them and stated that the pesticide used to
remain in their house as deceased used to
keep the same and it may be that by
1 All. Shiv Kumar and Anr. Vs. State of U.P.
917
mistake she had consumed the same by
mixing it in the food, however, neither
any suggestion was put to the prosecution
witness, Rakesh Kumar Dixit (PW-4) or
any other witness regarding the same nor
any evidence in defence has been led by
the appellants to prove the same.
Consequently, this Court is of the view
that Section 106 of the Indian Evidence
Act, 1872 is attracted to the facts of
present case. Section 106 of the Indian
Evidence Act, 1872 reads as under:-

"Section 106 Burden of proving
fact especially within knowledge-when
any
fact
is
especially
within
the
knowledge of any person, the burden of
proving that fact is upon him."

29. The law with regard to Section
106 of Indian Evidence Act is well settled
and some of the relevant judgments are
reproduced herein below;

(A) In the case of 'State of W.B. vs.
Mir Mohammad Omar and others',
(2000) 8 SCC 382, the Hon'ble Supreme
Court observed as under:

"31. The pristine rule that the
burden of proof is on the prosecution to
prove the guilt of the accused should not
be taken as a fossilised doctrine as
though it admits no process of intelligent
reasoning. The doctrine of presumption
is not alien to the above rule, nor would
it impair the temper of the rule. On the
other hand, if the traditional rule
relating to burden of proof of the
prosecution is allowed to be wrapped in
pedantic coverage, the offenders in
serious offences would be the major
beneficiaries, and the society would be
the casualty.

32. In this case, when the
prosecution succeeded in establishing
the afore-narrated circumstances, the
court has to presume the existence of
certain facts. Presumption is a course
recognised by the law for the court to
rely on in conditions such as this.

33. Presumption of fact is an
inference as to the existence of one fact
from the existence of some other facts,
unless the truth of such inference is
disproved. Presumption of fact is a rule
in law of evidence that a fact otherwise
doubtful may be inferred from certain
other proved facts. When inferring the
existence of a fact from other set of
proved facts, the court exercises a
process of reasoning and reach a logical
conclusion as the most probable position.
The
above
principle
has
gained
legislative recognition in India when
Section 114 is incorporated in the
Evidence Act. It empowers the court to
presume the existence of any fact which
it thinks likely to have happened. In that
process court shall have regard to the
common course of natural events,
human conduct etc. in relation to the
facts of the case.

34. When it is proved to the
satisfaction of the Court that Mahesh
was abducted by the accused and they
took him out of that area, the accused
alone knew what happened to him until
he was with them. If he was found
murdered within a short time after the
abduction
the
permitted
reasoning
process would enable the Court to draw
the presumption that the accused have
murdered him. Such inference can be
disrupted if the accused would tell the
Court what else happened to Mahesh at
least until he was in their custody.

35.......................

36.......................

37. The section is not intended
to relieve the prosecution of its burden to
918 INDIAN LAW REPORTS ALLAHABAD SERIES
prove the guilt of the accused beyond
reasonable doubt. But the Section would
apply to cases where the prosecution has
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.
(emphasis supplied)"

(B) In the case of 'Ram Gulam
Chaudhary and others vs. State of
Bihar', (2001) 8 SCC 311, the Hon'ble
Supreme Court held as under:

"24. Even otherwise, in our
view, this is a case where Section 106 of
the
Evidence
Act
would
apply.
Krishnanand Chaudhary was brutally
assaulted and then a chhura-blow was
given on the chest. Thus chhura-blow
was given after Bijoy Chaudhary had
said "he is still alive and should be
killed". The appellants then carried
away
the
body.
What
happened
thereafter to Krishnanand Chaudhary is
especially within the knowledge of the
appellants. The appellants have given no
explanation as to what they did after they
took
away
the
body.
Krishnanand
Chaudhary has not been since seen
alive. In the absence of an explanation,
and considering the fact that the
appellants were suspecting the boy to
have kidnapped and killed the child of
the family of the appellants, it was for
the appellants to have explained what
they did with him after they took him
away. When the abductors withheld that
information from the court, there is
every justification for drawing the
inference that they had murdered the
boy. Even though Section 106 of the
Evidence Act may not be 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 like the present, where the
prosecution has succeeded in proving
facts from which a reasonable inference
can be drawn regarding death. The
appellants by virtue of their special
knowledge must offer an explanation
which might lead the Court to draw a
different inference. We, therefore, see no
substance in this submission of Mr
Mishra.
(emphasis supplied)"

30. Thus, if an offence takes place
inside the privacy of a house as in the
present case and in such circumstances
where
the
assailants
have
all
the
opportunity to plan and commit the
offence 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 strict
principle of circumstantial evidence, as
notice 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. In the case
of 'Stirland vs. Director of Public
Prosecution', reported as 1944 AC 315, it
has been observed that a Judge does not
provide over a criminal trial merely to see
that no innocent man is punished, but also
to see that a guilty man does not escape.

31. 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
1 All. Shiv Kumar and Anr. Vs. State of U.P.
919
circumstances of the case. Here, it is
necessary to keep in mind Section 106 of
the Indian Evidence Act which says that
when any fact is especially within the
knowledge of any person, the burden of
proving that fact is upon him. Illustration
(b) appended to this Section throws some
light on the content and scope of this
provision and it reads:-(b) a is charged
with traveling on Railway without a
ticket. The burden of proving that he had
a ticket is on him.

32. 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 Indian 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 or the
deceased died. 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 an explanation.

33. Where an accused is alleged to have
committed the murder of his wife and the
prosecution succeeds in leading evidence to
show that shortly before the commission of
crime they were seen together or the offence
takes place in the dwelling home where the
husband also normally resided, it has been
consistently held that if the accused does not
offer any explanation how the wife received
injuries or offers an explanation which is
found to be false, it is strong circumstance
which indicates that he is responsible for
commission of the crime.

34. A Division Bench of Delhi High
Court in the case of 'Tulsi Ram vs.
State', (2017) SCC Online Delhi 7343,
has held as under:-

"44. It has been proved by the
prosecution that the deceased was found
dead in the dwelling house where she
was residing with the appellant and was
also last seen together with him. It
becomes incumbent on him to offer a
plausible explanation for the death of his
wife." (emphasis supplied)

35. 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 complete it. This view
has been taken in a catena of decisions.

36. In the instant case, when admittedly,
deceased, Smt. Meena Devi was present in her
matrimonial house and the death had occurred
inside the house of the appellants only, so
presumption under Section 106 of the Indian
Evidence Act can be raised as the fact of death
of deceased was exclusively in the knowledge
of the appellants.

37. Moreover, the postmortem report
(Ex. KA-3) reveals that the probable time of
death was 3-5 days, the postmortem was
conducted on 06.08.1998. This means that the
tragic death took place on 2nd or 3rd August,
920 INDIAN LAW REPORTS ALLAHABAD SERIES
1998. But the information was given to the
father of the deceased on 04.08.1998 i.e., after
about 2-3 days of the death. Further, the
information was given that the deceased was
not well whereas she had already expired
before 04.08.1998.

38. The circumstances in the present
case are of conclusive nature which fully
establishes
the
guilt
of
both
the
appellants. In fact, the chain of evidence
is so complete as not to leave any
reasonable ground for a conclusion
consistent with the innocence of both the
appellant-accused.

DELAY IN REGISTRATION OF
F.I.R.

39. The complainant received an
information on 04.08.1998 that his
daughter was not well, on receiving said
information, her father went to the
matrimonial house of his daughter on
05.08.1998 and he found the dead body of
his daughter; he made a complaint to
Police on 05th August, 1998, an entry was
made in General Diary (G.D.) but F.I.R.
was not registered. The postmortem was
got conducted on 06.08.1998 and the
viscera was preserved. Thereafter, the
complainant/father of the deceased made
a complaint to Superintendent of Police,
Kheri on 23.08.1998 and only thereafter
F.I.R. under Section 302 of I.P.C. was
registered against Shiv Kumar, Ram
Sahaya and Smt. Munni Devi on
05.09.1998. Hence, the delay in lodging
F.I.R. has been duly explained.

NON-EXAMINATION
OF
COMPLAINANT

40. The counsel for the appellants
contended
that
complainant,
Sri
Omprakash Dixit was not examined by
the prosecution. It is relevant to mention
here that it has come in the statement of
Rakesh Kumar Dixit (PW-3) that Sri
Omprakash Dixit died on 04.06.2001.
Thus, the same is of no relevance.

CONCLUSION

41. On an assessment of the entire
gamut of the evidence on record, we find
that the prosecution has been able to
establish the following circumstances:-

(i) The deceased was married with
appellant No.1, Shiv Kumar on 28.06.1982, no
child was born from the said wedlock and she
was not having good relations with her
husband as she was subjected to cruelty in lieu
of demand of dowry;

(ii)
the
deceased,
Meena
instituted proceedings for maintenance
against appellant No.1, the appellant No.1
denied the relationship of husband and
wife in the said proceedings, a sum of
Rs.200/- per month was awarded as
maintenance vide order dated 19.09.1990;

(iii) the appellant No.1 filed a
revision petition against the said order
which was dismissed and the appellant
No.1 had to pay arrears of maintenance to
the tune of Rs.16,000/-
(iv)
the
appellant No.1 took the deceased from her
parental house on 20.02.1998, to avoid
payment of maintenance;

(v) on 04.08.1998, an information
was given to the house of deceased's parents
that she (Meena) was ill;

(vi) when the father of the
deceased,
Om
Prakash
Dixit
(now
deceased) reached at the matrimonial
house, he found the dead body of
deceased, body had become blue, foul
smell was coming from the body of
deceased, maggots were present;

(vii) it appeared that the body
was
old;
1 All. Ram Karan and Anr. Vs. State of U.P.
921

(viii)
the
complainant
immediately informed to the police;

(ix) as per postmortem report
maggots were found over the body, doctor
A.K. Tyagi (PW-4) opined that the
deceased might have died about 3-5 days
prior to the postmortem;

(x) no information regarding
death of the deceased was given to her
father or brother and death was concealed
for about three days;

(xi) appellants/accused persons
concealed the death of deceased;

(xii) the body was found in the
house of the appellants and they all were
living in the same house;

(xiii) in viscera report malathion
(organophosphate insecticide) was found,
which is a poison;

(xiv) no acceptable explanation
has been given by the appellants as to
how the deceased, Meena died;

(xv) the appellants in their
statement under Section 313 of Cr.P.C.
simply stated that the deceased might
have consumed poison by mistake but no
such defence was taken in the crossexamination of prosecution witnesses.

42. In view of the above circumstances,
we are of the considered opinion that
circumstances in the present case are of
conclusive nature, read with Section 106 of
the Indian Evidence Act, 1872 fully
establishes the guilt of the appellants-accused
persons. In fact, the chain of evidence is so
complete as not to leave any reasonable
ground for a conclusion consistent with the
innocence of both the appellants. The
aforesaid circumstances show that the act of
murder had been committed by the appellants
only.

43. Consequently, the present appeal
being bereft of merit is dismissed.

44. The trial court record along with
a copy of this judgment be sent to trial
court forthwith.

45. The appellant, Shiv Kumar is in
judicial custody. A copy of this judgment
be also sent to the appellants through
Superintendent
Jail
concerned
immediately.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.09.2019

BEFORE
THE HON'BLE KARUNESH SINGH PAWAR, J.

CRIMINAL APPEAL No. 2057 OF 2007

Ram Karan and Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Akhtar Abbas, Sri Bhanu Dutt Dwivedi,
Sri Sanjay Kumar Yadav, Sri Syed Husain
Abbas.

Counsel for the Opposite Party:
G.A., Sri Kaushal Kishore Tewari

A. Juvenile Justice (Care and Protection
of Children) Act,2000-Sections 7, 7A, 9,
64 and Juvenile Justice (Care and
Protection of Children) Rules 2007Clause 12 sub clause 3 - Application-
Claim to be juvenile-rejection- issue of
juvenility Since, on date of occurrence
i.e. 08.11.1999, as per High School mark
sheet, hence, he was juvenile-
(Paras 4, 5 & 11)

Application allowed.

Case Law Discussed:-
2016(9) ADJ 627 (E-6)

(Delivered by Hon'ble Karunesh Singh
Pawar, J. )