# Usman v. State of U.P. Opp. Party

- **Citation:** (2024) 3 ILRA 1335
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-14
- **Case number:** Jail Appeal No. 4480 of 2016
- **Bench:** Rajiv Gupta, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/usman-v-state-of-u-p-opp-party-51578
- **Pages:** 12

## Headnote

(A) Criminal Law - Murder conviction
based on circumstantial evidence - Indian
Penal Code, 1860 - Section 302 - murder -
Circumstantial Evidence - Child Witness -
Presumption of Guilt - Homicidal Death -
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 a strong circumstance which
indicates
that
he
is
responsible
for
commission of the crime. (Para - 40,48)

(B) Indian Evidence Act, 1872 - Section
106 - Burden of proving fact especially
within
knowledge,
Section
118
-
competency
of
child
witnesses
-
Presumption of guilt under Section 106 of
the Indian Evidence Act when the crime
occurs within the private dwelling of the
accused - credibility of a child witness's
testimony
depends
on
the
case's
circumstances and the witness's reliability
and demeanor - no rule of practice for
corroboration of child witness evidence
before conviction
-
If the witness's
deposition inspires confidence and there is
no embellishment, the court may rely on
it.(Para - 43)

(D) Words or Phrases - "especially" - facts
that are pre-eminently or exceptionally
within the knowledge of the accused ,
"Especially within the knowledge of the
accused" - presumption of fact is a rule in
law of evidence that a fact otherwise
doubtful may be inferred from certain
other proved facts - Pertains to facts that
an accused can more readily explain in
certain cases, under Section 106 of the
Evidence Act. (Para 40)
1336 INDIAN LAW REPORTS ALLAHABAD SERIES
Appellant was accused of murdering his wife -
within the confines of their home - prosecution's
case was supported by deceased's son, a child
witness - who witnessed crime - Appellant's
presence at the time of the crime was
established - no contrary evidence offered by
the defense.(Para 3-13, 18-20)

HELD:
-
Prosecution
proved
beyond
a
reasonable doubt that appellant killed his wife in
their home. Child's testimony was credible,
consistent,
and
corroborated
by
medical
evidence
and
additional
circumstances.
Accused's
silence
and
failure
to
explain
circumstances of death in his home led to a
presumption of guilt under Section 106 of the
Evidence Act. Conviction and sentence for
murder were upheld. (Para 31, 37-50)

Appeal dismissed. (E-7)

LIST OF CASES CITED: -

## Text

3 All. Usman Vs. State of U.P.
1335
already directed that all the sentences
would run concurrently and since it has
been informed by the learned counsel for
the appellants that all the appellants have
already undergone sentence for more than
10 years. We hold that the appellants are
entitled to be released from jail forthwith, if
they are not required in any other case.

40. Therefore, it is directed that the
concerned Jail Authorities shall verify the
aforesaid facts that if all the appellants have
completed their sentences as modified
hereinabove,
they
shall
be
released
forthwith, if they are not required in any
other case with the aforesaid observations,
these appeals are partly allowed.

41. We appreciate the hard work done
by learned Amicus Curiae, Sri Sikandar B.
Kochar and put on record our gratitude. We
further direct the Legal Services Authority
to make payment of Rs. 25,000/- per appeal
as Honorarium in which the learned
Amicus Curiae argued.
----------
(2024) 3 ILRA 1335
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.03.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Jail Appeal No. 4480 of 2016

Usman ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
From Jail, Sri Arvind Kumar Singh

Counsel for the Opp. Party:
A.G.A.

(A) Criminal Law - Murder conviction
based on circumstantial evidence - Indian
Penal Code, 1860 - Section 302 - murder -
Circumstantial Evidence - Child Witness -
Presumption of Guilt - Homicidal Death -
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 a strong circumstance which
indicates
that
he
is
responsible
for
commission of the crime. (Para - 40,48)

(B) Indian Evidence Act, 1872 - Section
106 - Burden of proving fact especially
within
knowledge,
Section
118
-
competency
of
child
witnesses
-
Presumption of guilt under Section 106 of
the Indian Evidence Act when the crime
occurs within the private dwelling of the
accused - credibility of a child witness's
testimony
depends
on
the
case's
circumstances and the witness's reliability
and demeanor - no rule of practice for
corroboration of child witness evidence
before conviction
-
If the witness's
deposition inspires confidence and there is
no embellishment, the court may rely on
it.(Para - 43)

(D) Words or Phrases - "especially" - facts
that are pre-eminently or exceptionally
within the knowledge of the accused ,
"Especially within the knowledge of the
accused" - presumption of fact is a rule in
law of evidence that a fact otherwise
doubtful may be inferred from certain
other proved facts - Pertains to facts that
an accused can more readily explain in
certain cases, under Section 106 of the
Evidence Act. (Para 40)
1336 INDIAN LAW REPORTS ALLAHABAD SERIES
Appellant was accused of murdering his wife -
within the confines of their home - prosecution's
case was supported by deceased's son, a child
witness - who witnessed crime - Appellant's
presence at the time of the crime was
established - no contrary evidence offered by
the defense.(Para 3-13, 18-20)

HELD:
-
Prosecution
proved
beyond
a
reasonable doubt that appellant killed his wife in
their home. Child's testimony was credible,
consistent,
and
corroborated
by
medical
evidence
and
additional
circumstances.
Accused's
silence
and
failure
to
explain
circumstances of death in his home led to a
presumption of guilt under Section 106 of the
Evidence Act. Conviction and sentence for
murder were upheld. (Para 31, 37-50)

Appeal dismissed. (E-7)

LIST OF CASES CITED: -

1. Nagendra Sah Vs The St. of Bihar, (2021) 10
SCC 725

2. Balvir Singh Vs St. of Uttarakhand, Crl.
Appeal No. 301 of 2015

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

4. Nagendra Sah Vs St. of Bihar, (2021) 10 SCC
725

5. Tulshiram Sahadu Suryawanshi & anr. Vs St.
of Maha., (2012) 10 SCC 373

6. Trimukh Maroti Kirkan Vs St. of Maha.,
(2006) 10 SCC 681

(Delivered by Hon'ble Rajiv Gupta, J.)

1. Heard Shri Arvind Kumar Singh,
learned Amicus Curiae for the appellant,
Shri J.P. Tripathi, learned AGA for the
State and perused the record.

2. This instant jail appeal has been
filed against the judgment and order dated
30.11.2015 passed by District and Sessions
Judge, Bijnor, in Sessions Trial No.221 of
2014 (State Vs. Usman), arising out of
Case Crime No. 59 of 2014, under Sections
302 IPC, Police Station Syohara, District
Bijnor, whereby the appellant has been
convicted for the offence under Section 302
IPC and awarded the sentence of life
imprisonment
alongwith
a
fine
of
Rs.20,000/- with default stipulation.

3. Shorn of unnecessary details, the
prosecution story, as mentioned in the FIR,
is that Shahana, sister of the first informant
Mohd. Hanif (P.W. 1) was married about
12 years back to the appellant Usman,
resident of mohalla Aladinpur, Police
Station Syohara. Usman used to suspect the
character of his wife and very often used to
hurl abuses and beat her in a drunken state.
It is further stated that every effort was
made to counsel him by his family
members, but to no avail. Yesterday i.e. on
29.01.2014, at about 08.00 p.m. in the
evening, Shahana had called him over
phone and informed that her husband
Usman is quarreling with her, beating her
and threatening to kill her, he, however,
pacified his sister and asked her not to
quarrel and assured that he will reach by
tomorrow to counsel Usman. It is further
stated that on 30.01.2014, he along with his
brother Mohd. Islam and Akbar Ali reached
his sister's house in village Aladinpur and
found her dead body lying on a cot having
injuries on her neck and face. A rope was
found lying near the cot. It is further stated
that last night Shahana was done to death
with the help of rope by strangulating her.

4. On the basis of a written report
(Ext. Ka-1), an FIR was registered vide
Case Crime No.59 of 2014, under Section
302 IPC in Police Station Syohara, District
Bijnor at 08.30 a.m. Carbon copy whereof
3 All. Usman Vs. State of U.P.
1337
was drawn vide G.D. Report No.19 at
08.30 a.m. on 30.01.2014.

5. The investigation of the said case
was entrusted to the Station Officer, who
after copying out the chik FIR and G.D. in
the Case Diary, recorded the statement of
Head Moharrir and thereafter, recorded the
statement of the first informant Hanif,
Adnan, son of the deceased and Fatima,
sister of the deceased and thereafter on the
pointing out of the first informant prepared
the site plan, which has been proved and
marked as Ext. Ka-3.

6. A plastic rope lying near the cot
was also taken in possession and a recovery
memo was prepared for the same, which
has been proved and marked as Ext. Ka-4.
Thereafter,
the
Investigating
Officer
instructed
S.I.
Rajendra
Singh,
who
accompanied him to the place of incident to
conduct the inquest. S.I. Rajendra Singh
conducted the inquest and prepared the
Inquest Memo and at the same time
prepared all other relevant documents
namely Form-13, photo-lash, challan-lash,
letter to C.M.O., letter to R.I., sample seal,
which has been proved and marked as Ext.
Ka-9 to Ka-14 and thereafter sent the body
of the deceased to the mortuary.

7. An autopsy was conducted by Dr.
F.C. Verma on the person of the deceased
Shahana in District Hopspital, Bijnor on
31.01.2014 and in the post-mortem report,
the Doctor has noted two ante-mortem
injuries, which are as under:-

(i) Ligature mark 30-20 around
the neck below the chin, 5 cm below from
both ears brown in colour.

(ii) Abrasion 12 cm x 2 cm below
the mouth present on both sides of
mandible.

8. In internal examination of the
corps, trachea was found congested and
ecchymosis was present. Both the lungs
were congested. Right chamber of heart
was full, whereas the left chamber was
empty. Stomach was empty. Gall bladder
was full. Spleen, liver and kidneys were
found congested. The Doctor has noted the
cause of death to be asphyxia due to antemortem strangulation.

9. On 31.01.2014 itself, the appellant
Usman is said to have been arrested and his
statement was recorded. Thereafter, the
Investigating Officer has recorded the
statement
of
relevant
witnesses
and
obtained FSL report and after concluding
the investigation submitted the chargesheet against the appellant vide ChargeSheet No.46 of 2014, under Section 302
IPC, proved it and marked as Ext. Ka-5.

10. On the basis of the said chargesheet,
learned
Magistrate
has
taken
cognizance. Since the case was exclusively
triable by Court of Sessions, learned
Magistrate made over the case to the Court
of Sessions for trial. The Sessions court
vide its order dated 29.05.2014 framed the
charge under Section 302 IPC against the
appellant, who abjured the said charge and
claimed to be tried.

11. During the course of trial, the
prosecution has examined as many as three
witnesses of fact and three other formal
witnesses. Their testimony, in brief, is
enumerated hereunder.

12. P.W.1 Mohd. Hanif is the first
informant and brother of the deceased and
he, in his testimony, stated that about 12
years back, his sister Shahana was married
to Usman, who used to suspect her
character and very often used to hurl abuses
1338 INDIAN LAW REPORTS ALLAHABAD SERIES
and beat her in a drunken state. On
29.01.2014 at about 08.10 p.m., Shahana
informed him over phone that her husband
Usman is quarreling with her, beating her
and threatening to kill her. He asked his
sister not to quarrel and assured her to
reach there by tomorrow to counsel Usman.

13. On 30.01.2014, he along with his
brother reached the house of Shahana and
found her dead body lying on a cot having
injuries on her face and neck. The rope
lying near the cot was also found and it
appeared that her husband Usman had
killed her by strangulating with the help of
a rope, however, Usman was not present
there.

14. In respect of the said incident, he
had given written report (Ext. Ka-1 ) at the
police station, on the basis of which, the
chik FIR was registered. On the basis of the
said FIR, the police reached the place of
incident and prepared the fard recovery
memo of the rope found lying there.

15. During cross-examination, he
stated that Shahana was his sister and was
married to Usman. A phone call from his
sister was received informing him that
there was a threat to her life by her husband
Usman. Pursuant to the said phone call, on
the next day he reached at his sister's house,
where he found mother-in-law of Shahana,
her sister-in-law and brother-in-law to be
present and except them no one else was
present there and in the room, Shahana was
lying dead.

16. On the basis of the said incident,
he reached the police station and lodged the
report. The written report (Ext. Ka-1) was
scribed by one Tarik Jaidi and thereafter he
had gone in the police station to lodge the
report. He further stated that no blood was
found on the rope. He further stated that
Investigating Officer on the very next day
had recorded his statement.

17. He denied the suggestion that
some unknown person had killed his sister
and, on suspicion, he lodged the report
against Usman. He further denied the
suggestion that no telephone call was
received from Shahana and he had gone to
her house at Aladinpur.

18. P.W. 2 Adnan is a child witness
aged about 6-7 years, who is the son of the
deceased and after putting him some formal
questions, as to test his understanding, his
testimony has been recorded, in which, he
has stated that his father, who is present in
the court, had killed his mother about one
year back by pressing pillow on her mouth
and strangulating her by a rope. At the time
of incident, he was present in the house and
his mother was killed in the night.

19. During cross-examination, he
stated that on the day of incident her
mother and father were sleeping on
different cots and he was sleeping along
with his father. He came to know about the
killing of his mother in the night itself,
when his father was smothering her. At the
time of incident, there was some darkness
in the room. He further stated that the
police interrogated him and he disclosed to
the police that his father alone by pillow
and a rope had killed his mother but she
could not raise any alarm and no one had
tutored him to give such statements.

20. P.W. 3 Fatima is the another
witness and sister of the deceased, who
stated that Shahana was married to Usman
and was having a son Adnan. Usman used
to suspect the character of his wife and
used to assault her. On the day of incident,
3 All. Usman Vs. State of U.P.
1339
she was in her mother's place and when the
information about the death of Shahana
was received, she reached the place of
incident and his nephew Adnan disclosed
her the entire incident that his father by
pressing his mother's mouth by a pillow
and by strangulating had killed her.

21. During cross-examination, she
stated that on getting the information about
the death of her sister, she had reached the
place of incident along with Islam,
Washeem, Amin and Ayub. When they
reached there, they met Adnan but not
Usman. She denied the suggestion that
Adnan had not disclosed her anything and
she for the first time is deposing the said
facts in the court.

22. P.W. 4, Dr. F.C. Verma is the
Medical Officer at District Hospital Bijnor,
who conducted autopsy on the person of
the deceased and proved the autopsy report
and contents thereof, which has been
exhibited as Ext. Ka-2.

23. During cross-examination, he
stated that the victim has not died because
of smothering but due to strangulation by
rope.
He
further
stated
that
while
strangulation by a rope, linear abrasion
would not follow but ligature mark would
be noted. He denied the suggestion that on
account of strangulating by a rope, death is
not possible and it is not necessary that at
the time of strangulation an alarm would be
raised.

24. P.W. 5 is the Investigating
Officer, in whose presence the instant case
was registered and investigation was
entrusted to him. He after copying the G.D.
and chik report, recorded the statement of
Head Moharrir and reached the place of
incident, where he recorded the statement
of the first informant and Adnan, son of the
deceased and Fatima. He prepared the site
plan at the pointing out of the first
informant, which is proved as Ext. Ka-3 as
well as prepared the fard recovery memo of
the rope, which was found lying near the
cot at the place of incident.

25. On his instructions, inquest
proceedings were made by S.I. Rajendra
Singh and after preparing all the relevant
documents, the dead body of the deceased
was dispatched for autopsy. On 31.01.2004,
he
arrested
the
accused
and
after
completing the investigation submitted the
charge-sheet.

26. During cross-examination, he
stated that he reached the place of incident
at 09:00 a.m. and thereafter recorded the
statement of the witnesses and that of
Adnan, who had informed him that last
night his father in a drunken state had
killed his mother. He further stated that
Adnan had not disclosed him that his father
killed his mother by strangulating her,
however, at the relevant time he was
sleeping with him. He further informed him
that he had seen his father near the cot of
his mother. He further pointed out that on
the rope there was a light spots of blood.

27. He denied the suggestion that
during the course of investigation, it was
disclosed to him that some other person had
killed the deceased and not Usman. He
further denied the suggestion that on the
day of incident, the appellant was not
present in his house and had gone out to ply
rickshaw.

28. P.W. 6 is S.I. Rajendra Singh,
who,
on
the
instructions
of
the
Investigating Officer, had conducted the
inquest on the person of the deceased and
1340 INDIAN LAW REPORTS ALLAHABAD SERIES
prepared the inquest memo and other
relevant papers, which have been proved by
him and exhibited as Ext. Ka-9 to Ext. Ka13. He further stated that at the time of
inquest, rope was found near the cot, on
which the dead body was lying and its
recovery memo was prepared by the S.O.
Satish Kumar, which has been marked as
material Ext. Ka-4.

29. During cross-examination, he
stated that the rope was white in colour and
the inquest proceedings were conducted by
him at 09:00 a.m. and as per the opinion of
the Panches, the cause of death has been
mentioned in the inquest report to be
strangulation. He denied the suggestion that
all exercise of inquest were made in the
police station and no rope was recovered
from the place of incident.

30. Thereafter, the statement of the
accused-appellant
under
Section
313
Cr.P.C. has been recorded by putting all the
incriminating circumstances to him. The
appellant denied all the incriminating
circumstances, however, the defence has
not led any evidence to show his presence
at some other place.

31.

The
trial
court
after
appreciating the evidence on record has
held that the prosecution has successfully
established its case against the appellant by
relying upon the testimony of P.W.-2,
being the natural witness, whose presence
at the time and place of incident has been
cogently and unerringly established, who
has categorically pointed out the presence
of the appellant in the house at the time of
incident. Furthermore the appellant has
failed to lead any evidence to rebut the
presumption drawn against him under
Section 106 of Indian Evidence Act.

32. Learned amicus curiae for the
appellant has submitted that the incident
has not taken place in the manner as
alleged by the prosecution and some
unknown person killed the deceased and
the appellant has been falsely implicated by
creating an eye-witness account of a child
witness, who has been tutored to depose
before the trial court.

33. Learned amicus curiae for the
appellant has further submitted that P.W.1
and P.W. 3 are not the eye-witness of the
incident but are deposing on the basis of
hearsay and therefore, their testimony is
liable to be discarded. He has further
submitted that the recovery of rope from
the place of incident has not been cogently
established, therefore, it creates serious
dent in the prosecution story.

34. Learned amicus curiae for the
appellant has next submitted that the
prosecution has failed to discharge the
initial burden of establishing the facts from
which a reasonable inference can be drawn
regarding the existence of certain other
facts, which are within the special
knowledge of the accused, in the absence
of which, it cannot be said that the
prosecution has been able to prove its case
beyond reasonable doubt and the appellant
is entitled to be acquitted.

35. Learned amicus curiae in
support of his contention has placed
reliance upon the case of Nagendra Sah
Vs. The State of Bihar, (2021) 10 SCC
725.

36. Per contra, learned AGA has
submitted that in the instant case, the
prosecution has successfully proved its case
beyond reasonable doubt. He has further
submitted that the time and place of
3 All. Usman Vs. State of U.P.
1341
incident has been cogently established. He
has further submitted that the incident in
question has taken place within the four
walls of the house of the appellant, in
which his presence has been cogently and
unerringly established, however, he has
failed to offer any reasonable explanation
for discharge of burden placed upon him by
virtue of Section 106 of the Indian
Evidence Act.

37. Learned AGA has next submitted
P.W.2, even though is a child witness, yet
in his statement has clearly and cogently
established the fact that at the time of
incident, the appellant was present in the
house and had killed his mother by pressing
her mouth by a pillow and further
strangulating her by a rope, which factum
is clearly corroborated by the post-mortem
report.

38. Learned AGA has next submitted
that by no stretch of imagination, the
evidence tendered by P.W.2, who though is
a child witness cannot be said to be tutored.
In the backdrop of the said circumstances
and, particularly, when the appellant has
failed to offer any reasonable explanation
in discharge of burden placed upon him by
virtue of Section 106 of the Indian
Evidence Act, failure of which provides an
additional link to the prosecution story, it
cannot be said that prosecution has failed to
prove its case beyond reasonable doubt
against the appellant.

39. Having considered the rival
submissions made by learned counsel for
the parties and in light of the evidence
adduced, though the only question falls for
our consideration is whether the trial court
has committed any error in passing the
impugned judgment and order.

40. The Hon'ble Apex Court in the
case of Balvir Singh Vs. State of
Uttarakhand passed in Criminal Appeal
No. 301 of 2015, dated 06.10.2023 has held
as under:

34. Section 106 of the Evidence
Act referred to above provides that when
any fact is especially within the knowledge
of any person, the burden of proving that
fact is upon him. The word "especially"
means facts that are pre-eminently or
exceptionally within the knowledge of the
accused. The ordinary rule that applies to
the criminal trials that the onus lies on the
prosecution to prove the guilt of the
accused is not in any way modified by the
rule of facts embodied in Section 106 of the
Evidence Act. Section 106 of the Evidence
Act is an exception to Section 101 of the
Evidence Act. Section 101 with its
illustration (a) 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 the facts which
are, "especially within the knowledge of
the accused and which, he can prove
without difficulty or inconvenience".

35. In Shambhu Nath Mehra v.
The State of Ajmer reported in AIR 1956
SC 404, this Court while considering the
word "especially" employed in Section 106
of the Evidence Act speaking through
Vivian Bose, J., observed as under:

"11. ... 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
1342 INDIAN LAW REPORTS ALLAHABAD SERIES
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 that cannot be
the intention & 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 he did not
commit the crime for which he is tried.
These cases are Attygalle v. The King, 1936

PC 169 (AIR V 23) (A) and
Seneviratne v. R, 1936- All ER 36 at p. 49
(B)."

36. The aforesaid decision of
Shambhu Nath (supra) has been referred
to and relied upon in Nagendra Sah v.
State of Bihar reported in (2021) 10 SCC
725, wherein this Court observed as under:

"22. Thus, Section 106 of the
Evidence Act will apply to those cases
where the prosecution has succeeded in
establishing the facts from which a
reasonable
inference
can
be
drawn
regarding the existence of certain other
facts
which
are
within
the
special
knowledge of the accused. When the
accused fails to offer proper explanation
about the existence of said other facts, the
court can always draw an appropriate
inference.

23. When a case is resting on
circumstantial evidence, if the accused fails
to offer a reasonable explanation in
discharge of burden placed on him by
virtue of Section 106 of the Evidence Act,
such a failure may provide an additional
link to the chain of circumstances. In a case
governed by circumstantial evidence, if the
chain of circumstances which is required to
be established by the prosecution is not
established, the failure of the accused to
discharge the burden under Section 106 of
the Evidence Act is not relevant at all.
When the chain is not complete, falsity of
the defence is no ground to convict the
accused." (Emphasis supplied)

37.
In
Tulshiram
Sahadu
Suryawanshi and Another v. State of
Maharashtra reported in (2012) 10 SCC
373, this Court observed as under:

"23. It is settled law that
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
reaches a logical conclusion as the most
probable position. The above position is
strengthened in view of Section 114 of the
Evidence Act, 1872. It empowers the court
to presume the existence of any fact which
it thinks likely to have happened. In that
process, the courts shall have regard to the
common course of natural events, human
conduct, etc. in addition to the facts of the
case. In these circumstances, the principles
embodied in Section 106 of the Evidence
Act can also be utilised. We make it clear
that this section is not intended to relieve
the prosecution of its burden to prove the
guilt of the accused beyond reasonable
doubt, but it 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. It is useful to quote the
following observation in State of W.B. v.
Mir Mohammad Omar [(2000) 8 SCC 382 :
2000 SCC (Cri) 1516]: (SCC p. 393, para
38)

"38.
Vivian
Bose,
J.,
had
observed that Section 106 of the Evidence
Act is designed to meet certain exceptional
3 All. Usman Vs. State of U.P.
1343
cases in which it would be impossible for
the prosecution to establish certain facts
which
are
particularly
within
the
knowledge of the accused. In Shambu Nath
Mehra v. State of Ajmer [AIR 1956 SC 404
: 1956 Cri LJ 794] the learned Judge has
stated the legal principle thus: (AIR p. 406,
para 11)

'11. This lays down the general
rule that in a criminal case the burden of
proof is on the prosecution and Section 106
is certainly not intended to relieve it of that
duty. On the contrary, it is designed to meet
certain exceptional cases in which it would
be
impossible,
or
at
any
rate
disproportionately
difficult
for
the
prosecution to establish facts which are
"especially" within the knowledge of the
accused and which he
could
prove
without
difficulty
or
inconvenience.

The word "especially" stresses
that. It means facts that are pre-eminently
or exceptionally within his knowledge.'""
(Emphasis supplied)

38. In Trimukh Maroti Kirkan v.
State of Maharashtra reported in (2006)
10 SCC 681, this Court was considering a
similar case of homicidal death in the
confines of the house. The following
observations are considered relevant in the
facts of the present case:

"14. If an offence takes place
inside the privacy of a house and in such
circumstances where the assailants have all
the opportunity to plan and commit the
offence at the time and in circumstances of
their choice, it will be extremely difficult
for the prosecution to lead evidence to
establish the guilt of the accused if the
strict principle of circumstantial evidence,
as noticed above, is insisted upon by the
courts. A Judge does not preside over a
criminal trial merely to see that no
innocent man is punished. A judge also
presides to see that a guilty man does not
escape. Both are public duties. (See
Stirland v. Director of Public Prosecutions
[1944 AC 315 : (1944) 2 All ER 13 (HL)]
- quoted with approval by Arijit Pasayat,
J. in State of Punjab v. Karnail Singh
[(2003) 11 SCC 271 : 2004 SCC (Cri)
135].) The law does not enjoin a duty on
the prosecution to lead evidence of such
character which is almost impossible to be
led or at any rate extremely difficult to be
led. The duty on the prosecution is to lead
such evidence which it is capable of
leading, having regard to the facts and
circumstances of the case. Here it is
necessary to keep in mind Section 106 of
the Evidence Act which says that when any
fact is especially within the knowledge of
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 travelling on
a railway without ticket. The burden of
proving that he had a ticket is on him."

15. Where an offence like murder
is committed in secrecy inside a house, the
initial burden to establish the case would
undoubtedly be upon the prosecution, but
the nature and amount of evidence to be led
by it to establish the charge cannot be of
the same degree as is required in other
cases of circumstantial evidence. The
burden would be of a comparatively lighter
character. In view of Section 106 of the
Evidence Act there will be a corresponding
burden on the inmates of the house to give
a cogent explanation as to how the crime
was committed. The inmates of the house
cannot get away by simply keeping quiet
and offering no explanation on the
supposed premise that the burden to
establish its case lies entirely upon the
prosecution and there is no duty at all on
an accused to offer any explanation.
1344 INDIAN LAW REPORTS ALLAHABAD SERIES

xxx xxx xxx

22. 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 a strong circumstance which
indicates that he is responsible for
commission of the crime. ..." (Emphasis
supplied)

41. Thus, taking in view the above
settled legal position and applying the said
principles in the instant case, it is evident
that the instant incident has taken place
inside the privacy of a house where the
appellant had all the opportunity to plan
and commit the offence at the time and
circumstance of his choice.

42. In the instant case, from the
evidence adduced by P.W.2, who though is
a child witness, has categorically stated in
his statement recorded during the course of
trial that his father was present in the house
at the time of incident and committed the
offence, as such, in the given circumstance,
it is thus obvious that the prosecution has
discharged its onus by proving all the
ailments necessary to establish the evidence
and now the burden has shifted upon the
accused to offer a reasonable explanation to
show as to how the crime was committed,
which is in his special knowledge,
however, in the absence of the same, the
accused would be guilty of the said
offence, which burden the appellant has
failed to discharge.
43. The next important question to
be considered in the instant case is whether
the testimony of a child witness under
Section 118 of the Indian Evidence Act
governs competence of the persons to
testify, which also includes a child witness.
Evidence of a child witness and its
credibility could depend upon the facts and
circumstances of each case. There is no
rule of practice that in every case, the
evidence of a child witness be corroborated
by other evidence before a conviction can
stand. The only precaution the Court should
bear in mind, while assessing the evidence
of a child witness, is that the witness must
be a reliable one and his demeanor must be
like any other competent witness and that
there exists no likelihood of being tutored,
however, in case, his deposition inspires
confidence of the court and there is no
embellishment or improvement, the court
may rely upon the evidence of a child
witness.

44. Furthermore, every witness
competent to depose, unless the Court
considers that he is prevented from
understanding the questions put to him due
to tender age and only in excess, there is no
evidence on record to show that the child
has been tutored, can the court reject their
statement partly or fully. An inference as to
whether the child has been tutored or not
can be drawn from the contents of his
deposition.

45. In the instant case, statement of
P.W. 2 has been fortified and proved by
other attending circumstances of the case
and medical evidence. His deposition being
precise, concise and specific without any
improvement or impropriety is worth
relying. P.W.2, in his statement after
answering the relevant questions put to
him, has very precisely stated that the
3 All. Usman Vs. State of U.P.
1345
appellant Usman, who is present in the
court,
had
killed
his
mother
by
strangulating her and at the relevant time,
he was at his home and that his mother was
killed in the night. He has further stated
that he had disclosed to the police that his
father killed his mother by a pillow and a
rope and her mother did not raise any
alarm. He has further categorically stated
that he has not been tutored at at all by any
one.

46. Thus, we find that the statement
of P.W. 2, even though being that of a child
witness, inspires our confidence coupled
with the fact that the appellant has
completely failed to rebut the presumption
raised against him under Section 106 of the
Indian Evidence Act. Even in the statement
recorded under Section 313 Cr.P.C., there
is no whisper explaining his conduct
regarding the death of his wife within the
four corners of his house, where he was,
admittedly, present in the night hours.

47. The cases cited by the learned
amicus curiae for the appellant are
completely distinguishable on the facts of
the instant case and on the basis of the
aforesaid discussions, they are of no help to
the appellant.

48. Thus, as held by the Hon'ble
Supreme Court that 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 resides, it has been consistently
held that if the accused does not dispute his
presence at home at the relevant time and
does not offer any explanation as to how
the wife received injuries, it is a strong
circumstance which indicates that he is
responsible for commission of the crime.

49. Applying the aforesaid principles
in the instant case, we are of the opinion
that the prosecution has proved its case
beyond reasonable doubt against the
appellant, as such, the impugned judgment
and order passed by the trial court is liable
to be upheld. The appeal has no force and it
is, accordingly, liable to dismissed.

50. Accordingly, the present
criminal
appeal
is
dismissed.
The
conviction
and
sentence
against
the
accused-appellant vide impugned judgment
and order dated 30.11.2015 is hereby
confirmed. The appellant is in jail. He is
directed to serve out the sentence imposed
upon him by the trial court.

51. Let a copy of this order be
forwarded to the trial court along with the
record for information and compliance.

Case :- JAIL APPEAL No. - 4480 of
2016

Appellant :- Usman
Respondent :- State of U.P.

Counsel for Appellant :- From Jail,
Arvind Kumar Singh
Counsel for Respondent :- A.G.A.

(Hon'ble Rajiv Gupta, J.)
(Hon'ble Mohd. Azhar Husain Idrisi, J.)

Mr. Arvind Kumar Singh, Advocate
was appointed an Amicus Curiae in the
instant case. He has rendered valuable
assistance to the Court. The Court
quantifies Rs.10,000/- to be paid to Mr.
Arvind Kumar Singh, Advocate towards
fee for the able assistance provided by him
1346 INDIAN LAW REPORTS ALLAHABAD SERIES
in hearing of the instant jail appeal. The
said payment shall be made to Mr. Arvind
Kumar Singh, Advocate by the Registry of
this Court within one month from today.
----------
(2024) 3 ILRA 1346
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.02.2024

BEFORE

THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 6992 of 2019

Shobha Behel & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Pawan Singh Pundir

Counsel for the Respondent:
G.A., Sri Swetashwa Agarwal

(A) Criminal Law - Murder Conviction on
Circumstantial Evidence - Indian Penal
Code, 1860 - Section 302 read with
Section 34 - Last Seen Evidence - Chain of
Circumstances - Benefit of Doubt - Motive
- Doubtful Last Seen Witness - Incomplete
Chain - Delayed FIR - If two views are
possible, the benefit shall always go to the
accused
-In
a
case
based
on
circumstantial evidence, the prosecution
must
prove
a
complete
chain
of
circumstances to establish the guilt of the
accused, and failure to do so will result in
acquittal.(Para - 34,36,37)

Case involved conviction of appellants for
alleged murder of husband of appellant no.1 -
found dead at home when his parents returned
from a visit - Initially informant did not suspect
anyone, but later accused appellant's due to
property disputes - Prosecution relied on "last
seen" evidence and an alleged motive of
property inheritance. (Paras 2-28)

HELD: - Prosecution failed to prove five golden
principles
of
proving
a
case
based
on
circumstantial evidence. Prosecution did not
establish motive and evidence of last-seen
witnesses was unreliable due to inconsistencies
and delayed report. Trial Court erred in drawing
adverse presumption under Section 106 of
Indian
Evidence
Act,
1872.
Chain
of
circumstantial evidence was incomplete, failing
to
exclude
other
possibilities.
Shoddy
investigation and lack of scientific evidence
weakened the case further. Conviction based
solely on weak circumstantial evidence and
inconsistent last-seen testimonies was reversed.
impugned judgment of conviction and order of
sentence are set aside. Appellants are acquitted.
(Paras 29-41)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

1. Shivaji Chintappa Patil Vs St. of Maha., 2021
0 AIR (SC) (Cri) 813

2. Dinesh Kumar Vs St. of Har., 2023 0 AIR (SC)
2795

3. Krishan Kumar & Anr. Vs St. of Har., 2023 4
Crimes (SC) 87

4. Sharad Birdhichand Sarda Vs St. of Maha.,
AIR 1984 SC 1622

5. Jabir & Ors. Vs St. of Uttarakhand, 2023 0
AIR (SC) (Cri) 270

6. Harbeer Singh & anr. Vs Sheespal & ors., AIR
2016 SC 4958

(Delivered by Hon'ble Arvind Singh
Sangwan, J.)

1. Heard learned counsel for the
appellants, learned AGA for the State,
learned counsel for the informant and
perused the record.

2. The present appeal has been filed
against the judgment of conviction dated
2.11.2019 and order of sentence dated