# Vipin v. State of U.P

- **Citation:** (2022) 7 ILRA 771
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-07
- **Case number:** Criminal Appeal No. 843 of 2014
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vipin-v-state-of-u-p-48841
- **Pages:** 11

## Headnote

772 INDIAN LAW REPORTS ALLAHABAD SERIES
Ms. Ruhi Siddiqui, A.G.A.

Criminal Law - Indian Penal Code, 1860-
Section 302- Conviction under- Death of
wife by burning - Indian Evidence Act,
1872- Section 11- Plea of Alibi- The
convict /appellant has taken the plea of
alibi that he was in field when the incident
occurred, but this fact has not been
proved by him by any evidence. The
burden of proving his presence in the field
at the time of incident was on the
convict/appellant himself but he did not
adduce any evidence to prove the same.

Where the accused adopts the plea of alibi then
the burden is upon him to prove the same by
relative evidence, failing which the court may
take an adverse inference against him.

Criminal Law - Indian Evidence Act, 1872-
Section 106- The accused has stated that
the deceased got burnt accidentally but
this fact is also not believable in the
absence of any evidence/material on
record to prove the accidental burnt
specially when the contusions were found
on the cadaver of body in the postmortem-examination.
If
the
deceased
caught
fire
accidentally,
then
how
contusions have occurred on her body has
not
been
explained
by
the
convict/appellant.

Failure to explain the injuries of the deceased
who was living with the accused will constitute
an incriminating fact against the accused.

Criminal Law - Indian Evidence Act, 1872-
Section 106- Code of Criminal Procedure,
1973- Section 113- The convict/ appellant
himself has stated in his statement under
Section 313 of the Cr.P.C. that he used to
live with his wife Seema Devi in his house.
He did not say that his parents were there
when accident took place or the deceased
caught fire accidentally while cooking
food.

Where the explanation given by the accused to
discharge the burden of proof cast upon him
under section 106 of the Evidence Act, is not
consistent with his statement given under
Section 113 of the Cr.Pc, then such explanation
may not be accepted by the court. (Para 10, 12,
22)

Criminal Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

## Text

7 All. Vipin Vs. State of U.P.
771

61. Trial court placed reliance on the
provisions of Section 106 of the Evidence
Act to hold the appellant guilty as he failed
to explain the circumstance of last seen and
other
circumstances
relied
by
the
prosecution. Section 106 of the Evidence
Act does not absolve the prosecution of its
primary
responsibility
to
prove
the
prosecution case beyond reasonable doubt.
In Shivaji Chintappa Patil Vs. State of
Maharashtra 2021 (5) SCC 626, in
paragraph no. 23, the Apex Court clarified
the law as to when Section 106 of the
Evidence Act would operate by observing
as follows:-

"It could thus be seen, that it is
well-settled that Section 106 of the
Evidence Act does not directly operate
against either a husband or wife staying
under the same roof and being the last
person seen with the deceased. Section 106
of the Evidence Act does not absolve the
prosecution of discharging its primary
burden of proving the prosecution case
beyond reasonable doubt. It is only when
the prosecution has led evidence which, if
believed, will sustain a conviction, or
which makes out a prima facie case, that
the question arises of considering facts of
which the burden of proof would lie upon
the accused."

62. From above, it is clear that before
shifting the burden upon the accused to
furnish explanation of the incriminating
circumstances appearing against him, it is
necessary for the prosecution to prove its
case beyond reasonable doubt.

63. In the present case the prosecution
has failed to prove beyond reasonable
doubt that the deceased was last seen alive
with the accused-appellant and that the
recoveries were made at the instance of the
appellant therefore, burden could not have
been placed upon the appellant to explain
those circumstances. Thus, in our view, the
court below wrongly took aid of the
provisions of Section 106 of the Evidence
Act to convict the appellant.

64. In view of the discussion made
above, we are of the considered view that
the prosecution failed to prove the guilt of
the appellant beyond reasonable doubt, the
conviction of the appellant is therefore
unsustainable. Consequently, the appeal is
allowed. The judgment and order of the
trial court is set aside. The reference to
confirm the death penalty is rejected. The
appellant is acquitted of the charges for
which he has been tried. As he is in jail, he
shall be released forthwith, unless wanted
in any other case, subject to compliance of
the provisions of section 437-A Cr.P.C. to
the satisfaction of the trial court below.

65. Let the lower court record be sent
along with certified copy of the order to the
trial court for compliance.
----------
(2022)07ILR A771
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.07.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 843 of 2014

Vipin ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Shri Ram Kant Jayswal, Advocate

Counsel for the Respondent:
772 INDIAN LAW REPORTS ALLAHABAD SERIES
Ms. Ruhi Siddiqui, A.G.A.

Criminal Law - Indian Penal Code, 1860-
Section 302- Conviction under- Death of
wife by burning - Indian Evidence Act,
1872- Section 11- Plea of Alibi- The
convict /appellant has taken the plea of
alibi that he was in field when the incident
occurred, but this fact has not been
proved by him by any evidence. The
burden of proving his presence in the field
at the time of incident was on the
convict/appellant himself but he did not
adduce any evidence to prove the same.

Where the accused adopts the plea of alibi then
the burden is upon him to prove the same by
relative evidence, failing which the court may
take an adverse inference against him.

Criminal Law - Indian Evidence Act, 1872-
Section 106- The accused has stated that
the deceased got burnt accidentally but
this fact is also not believable in the
absence of any evidence/material on
record to prove the accidental burnt
specially when the contusions were found
on the cadaver of body in the postmortem-examination.
If
the
deceased
caught
fire
accidentally,
then
how
contusions have occurred on her body has
not
been
explained
by
the
convict/appellant.

Failure to explain the injuries of the deceased
who was living with the accused will constitute
an incriminating fact against the accused.

Criminal Law - Indian Evidence Act, 1872-
Section 106- Code of Criminal Procedure,
1973- Section 113- The convict/ appellant
himself has stated in his statement under
Section 313 of the Cr.P.C. that he used to
live with his wife Seema Devi in his house.
He did not say that his parents were there
when accident took place or the deceased
caught fire accidentally while cooking
food.

Where the explanation given by the accused to
discharge the burden of proof cast upon him
under section 106 of the Evidence Act, is not
consistent with his statement given under
Section 113 of the Cr.Pc, then such explanation
may not be accepted by the court. (Para 10, 12,
22)

Criminal Appeal rejected. (E-3)

Case Law/ Judgements relied upon:-

1. Samsul Haque Vs St. of Assam : 2019(18)
SCC 161 ( cited)

2. St. of Raj. Vs Parthu: (2009 ) 3 SCC (Cri) 507

3. Shaikh Sattar Vs St. of Maha. :(2010) 3 SCC
(Cri) 906

4. Ranjit Kumar Haldar Vs St. of Sikkim: (2019)
(3) JIC 192 (SC).

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

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. This criminal appeal has been preferred
against the judgement and order dated
15.5.2014 passed by Additional Sessions Judge,
Court
No.2,
Hardoi
in
Sessions
Trial
No.18/2013 arising out of Case Crime No.315
of 2012 wherein convict/appellant was tried
under Sections 498-A, 304-B of the Indian
Penal Code, 1860 (in short I.P.C.) and under
Section 3/4 of the Dowry Prohibition Act ( in
short D.P. Act.) and in alternate to Section 304B to under Section 302 I.P.C., Police Station
Atrauli,
District
Hardoi
whereby
the
convict/appellant was acquitted under Sections
498-A, 304-B I.P.C. and under Section 3/4 of
the D.P.Act but convicted under Section 302
I.P.C. and sentenced to life imprisonment
coupled with a fine of Rs.20,000/- and in
default of payment of fine, to undergo further
imprisonment for six months.

2. The facts necessary for disposal of
this appeal shorn of unnecessary details, are
as follows :-
7 All. Vipin Vs. State of U.P.
773

i). A First Information Report ( in
short F.I.R.) was registered as Case Crime
No.315 of 2012, under Sections 498-A and
304-B I.P.C. and under Section 3/4 of the
D.P.Act. at Police Station Atrauli, District
Hardoi on 26.4.2012, on the basis of a
written report submitted by the complainant
Newaji. It was narrated in the written report
that the complainant married his daughter
Seema Devi to Vipin about two years
ahead. Vipiin, Bachaan and Bittan were
demanding one gold chain, one gold ring
and a motorcycle in dowry. It was told by
Seema Devi, daughter of the complainant
many times that she was being tortured for
non -fulfillment of the demand of dowry.
The complainant placated them many times
but they did not yield. On 22.4.2012,
Seema Devi, daughter of the complainant
was burnt after dousing with kerosene oil
by Vipin, Kedar and Bittan. After burning
Seema Devi, persons from her matrimonial
home carried her to the hospital where she
died during treatment and in-laws ran away
after leaving the dead body. He ( the
complainant) somehow got the information
and
reached
at
Balrampur
Hospital
alongwith his family members and found
the dead body of Seema Devi. The
complainant
got
the
post-mortemexamination done in the medical college
and brought the dead body to his home and
cremated.

ii). The report was lodged on
26.4.2012 at 4.00 p.m. The inquest of the
dead body was also made on 23.4.2012 at
5.45 p.m. to 6.45 p.m. at mortuary of
Balrampur Hospital, Lucknow, on the
information received from the Balrampur
Hospital, Lucknow which is Exhibit Ka-5 on
the record. Thereafter, the dead body was sent
for
post-mortem-examination
alongwith
necessary papers by the officer who
conducted the inquest. The post-mortemexamination of the deceased was conducted
on 24.4.2012 at 12.50 p.m. by a panel of two
doctors. Thereafter, the F.I.R. was registered
on 26.4.2012 and case was investigated and
chargesheet was submitted against the
accused Vipin( husband of the deceased),
Bachaan, brother in law of the deceased
(Jeth) and Smt. Bittan, sister-in-law of the
deceased (Jethani) under Section 498-A and
304-B of the I.P.C. and Section 3/4 of the
D.P.Act. The Magistrate concerned took
cognizance of the case and committed the
same to the court of Sessions for trial.
Learned Sessions Court framed charges
against all the three accused persons namely
Vipin, Bachaan and Smt. Bittan, under
Sections 498-A and 304-B and in alternate, a
charge under Section 302 I.P.C. was also
framed. Further a charge under Section 3/4 of
the D.P.Act was also framed.

iii). All the accused persons denied
the charges and claimed to be tried.

iv). The prosecution in order to
prove its case, examined seven witnesses,
which are as under :

a. P.W.-1- Newaji ( the complainant
and father of the deceased)

b. P.W.-2 - Smt. Shiv Pyari ( the
mother of the deceased).

c. P.W.-3- Shri Vivek Chandra,
C.O. who investigated the case, initially.

d. P.W.-4 - Police Constable
Rakesh Bahadur Singh who registered the
case and made entry in the concerned
General Diary (G.D.)

e. P.W.-5 - Shri Surendra Bahadur
Yadav, S.D.M. who conducted the inquest of
the dead body and sent the same for post
mortem.

f. P.W.-6 -Shri Sukh Ram Bharti,
who is second investigating officer and took
over the investigation from Shri Vivek
Chandra (P.W.- 3).

g. P.W.-7- Dr. Sushil Kumar
Srivastava who conducted autopsy on the
cadaver.
774 INDIAN LAW REPORTS ALLAHABAD SERIES

v). Apart from oral evidence,
relevant documents have also been proved
by the prosecution, which are as under :-

a. Exhibit Ka-1- Written report.

b. Exhibit Ka-2 - Site Plan.

c. Exhibit Ka-3- Chik F.I.R.

d. Exhibit Ka-4- Concerned G.D.

e. Exhibit Ka-5 - Inquest report.

f. Exhibit Ka-6 - A letter to the
C.M.O.

g. Exhibit Ka-7- Challan Nash.

h. Exhibit Ka-8- Photo Nash.

i. Exhibit Ka-9- Specimen Seal.

j. Exhibit Ka-10- Chargesheet.

k. Exhibit Ka-11 - Post-Mortemexamination Report.

vi). After close of prosecution
evidence, the statement of the accused
persons were recorded under Section 313
Cr.P.C. wherein accused Vipin admitted
his marriage with the deceased but
disputed the date of marriage. He denied
the allegation of demand of dowry and
stated
that
Seema
Devi
got
burnt
accidentally. When the fact came to his
knowledge, he got her admitted in the
hospital where she died. He denied the
fact that he ran away from the hospital
leaving the dead body of the deceased.
He also stated that report was lodged due
to enmity and witnesses have deposed
falsely. He further stated that he himself
informed about the incident to the family
of the deceased. In the last, he stated that
he used to live alongwith Seema Devi in
his own house. Seema Devi was alone in
the house and she got burnt accidentally
while cooking food. When he received
information about the incident in the
field, then he carried her for treatment
and sent the information to her parental
home. On this, persons from her parental
home came and demanded money from
him. When he did not pay then they got
lodged the F.I.R. falsely. No witness in
defence was produced by the convict/
appellant, though opportunity was given
by the trial Court.

vii). The learned trial Court
after hearing the arguments of both the
sides
and
analyzing
the
evidence
available
on
record,
came
to
the
conclusion that all the ingredients of
Section 304-B I.P.C. are not proved. It
has not been proved that the incident
occurred within seven years of marriage
as the period of marriage or the date of
marriage has not been proved by the
prosecution. Learned trial Court also
came to the conclusion that the fact of
demand of dowry was also remained
unproved as P.W.-1 and P.W.-2 father and
mother of the deceased, respectively have
stated in their statements made before the
trial court that they sent their daughter
with Vipin last time happily and there
was no demand at that time. Learned trial
court also took note of the statement of
P.W.-1 that no report of demand of dowry
or of torture was lodged by him nor any
'panchayat' was called by him. P.W.-1 and
P.W.-2 both in their statements, have
stated that they are poor persons but the
accused Vipin has some agricultural land
and he does farming on that. Learned trial
Court also concluded that the information
was given by the convict himself as in the
cross examination, both P.W.-1 and P.W.-
2 have accepted that they received the
information of the incident from Vipin on
telephone.

viii). Learned trial court acquitted
Bachaan and Bittan finding no role of them
as there was evidence on record that they
live separately in their own house and the
investigating officer also did not show in
the site plan the house of the Bachaan and
Bittan as per their statement, their house is
after 10-15 houses of the place of
occurrence. The trial Court held guilty
7 All. Vipin Vs. State of U.P.
775
Vipin for the alternate charge framed i.e.
under Section 302 I.P.C. as in the opinion
of the trial court, the deceased died of burnt
injuries in the house of her husband and in
the post-mortem-examination report four
contusions were found on the cadaver. No
explanation about contusions found were
offered by the convict. In the opinion of the
learned trial Court, it was the duty of the
convict Vipin who is the husband of the
deceased to explain how she died and who
caused contusions on her body. Under
Section 106 of the Indian Evidence Act, the
onus lies on the accused to explain the facts
specially within knowledge. Hence, the
learned trial court held the convict guilty
under Section 302 I.P.C. and sentenced him
to life imprisonment coupled with a fine of
Rs.20,000/- and in default, further sentence
of six months.

ix). Learned trial court acquitted
the convict of charges framed under
Section 498-A, 304-B I.P.C. and Section
3/4 of the D.P.Act.

3. Being aggrieved of the above
conviction and sentence, this appeal has
been preferred.

4. Heard Shri Rama Kant Jaiswal,
learned counsel for the convict/appellant
and Mrs. Ruhi Siddiqui, learned A.G.A. for
the respondent State.

5.

Learned
counsel
for
the
convict/appellant argued that the judgement
and order passed by he learned court below is
erroneous and against the evidence available
on record. The F.I.R.was lodged after a delay
of four days of the incident i.e. after due
deliberations with mala fide intentions. The
oral evidence and medical evidence do not
inspire confidence and are contradictory. The
appellant was not present at the place of
occurrence as he was working in his field at
the time of the incident. When he received
the information of the incident, he himself
admitted the deceased in a hospital and sent
information to the parental home of the
deceased. He further submitted that no odour
of kerosene oil was found by the doctor
conducting the post- mortem-examination.
He further argued that the question regarding
contusions found on the body of the deceased
was not put to the appellant under Section
313 of the Cr.P.C. which is a great error and
the accused cannot be supposed to explain
these contusions. He further argued that
Section 106 of the Evidence Act shall not
apply in the facts and circumstances of the
case because prosecution did not prove its
case beyond reasonable doubt. First, the
prosecution has to prove its case only after
that the burden shifts on the appellant to offer
explanation. He further argued that in fact the
deceased caught fire accidentally while
cooking food. He further argued that the
appellant was not the only person who was
residing in the house, his parents also reside
in the same house, so the burden under
Section 106 of the Evidence Act does not lie
on him only, to explain the injuries found on
the body of the deceased. He further argued
that the contusions found on the body of the
deceased might occur while running here and
there in a burning state with pegs and grasscutting machine which is usually kept in the
villages for cutting the fodder for the cattle.

6.

Learned
counsel
for
the
convict/appellant relied upon the case laws
Samsul Haque Vs. State of Assam :
2019(18) SCC 161. and also on extracts of
book C.D. FIELD'S Commentary on LAW
OF EVIDENCE ACT, 1872 contained on
page no.4640 and 4641.

7. Contrary to it, learned A.G.A.
argued that the deceased was staying with
her husband, the convict, in the same
776 INDIAN LAW REPORTS ALLAHABAD SERIES
house. The convict got her admitted in the
hospital. Thereafter, he ran away from the
scene. It is the version of the convict
himself that he got her admitted in the
hospital. The fact that the cremation was
done by the parents of the deceased, has not
been
disputed.
The
conduct
of
the
convict/appellant after the incident gives
support to the version of the prosecution.
The convict in his statement under Section
313 of the Cr.P.C. has stated that the
deceased caught fire accidentally while
cooking food but this statement of the
convict is not reliable because in the site
plan, the place of incident has been shown
as a room with a bed. If the deceased was
cooking food there and caught fire
accidentally, then why other articles kept in
the
room
were
not
burnt.
The
convict/appellant has also stated in his
statement under Section 313 Cr.P.C. that he
was not present at the spot when incident
occurred. But no such evidence has been
led by the convict/appellant to prove the
plea of alibi i.e. his absence from the place
of incident. The contusions found on the
body of the deceased has not been
explained and no such suggestion has been
put to the doctor P.W.-7 that these
contusions occurred due to the fact that the
deceased was running here and there in a
burning state and dashed to pegs or the
grass cutting machine. The husband and
wife living in a house and wife died an
unnatural death i.e. due to burn injuries and
contusions were found on her body, then a
heavy burden lies on the husband under
Section 106 of the Evidence Act, to explain
how she sustained the contusions and got
burnt.

8. Learned A.G.A. relied upon the
following case laws :

i). State of Rajasthan Vs. Parthu

: (2009 ) 3 SCC (Cri) 507.

ii). Shaikh Sattar Vs. State of
Maharashtra :

(2010) 3 SCC (Cri) 906.

iii). Ranjit Kumar Haldar Vs.
State of Sikkim

: (2019) (3) JIC 192 (SC).

9. Considered the rival submissions,
perused the original record of the trial court
as well as of the appeal and also gone
through the referred case laws.

10. Perusal of the record shows that in
this matter, it is not disputed that the
deceased was the wife of the convict Vipin
and she was living with him in the same
house. The date and place of occurrence is
also not disputed. It is also not disputed that
the deceased died of burn injuries that too
in the house of the convict/appellant. The
convict/appellant has also stated that after
the deceased got burnt, he admitted her in
the hospital. The stand of the convict Vipin
is that the deceased caught fire accidentally
while she was cooking food and he
received information in the field where he
was working and he came to the house and
got her admitted in the hospital. Under
Section 313 Cr.P.C., he has stated that he
himself sent the information to the parental
home of the deceased. On that, the persons
from
her
parental
home
came
and
demanded money from him. He could not
give money, therefore he was implicated
falsely. His statement shows that he has
admitted that he used to live alongwith the
deceased in his house. According to him,
Seema Devi was alone in the house at the
time of incident. It is also deducible from
his statement that he was in the field at the
time of the incident. Thus, the convict
/appellant has taken the plea of alibi that he
was in field when the incident occurred.
But this fact has not been proved by him by
7 All. Vipin Vs. State of U.P.
777
any evidence. The burden of proving his
presence in the field at the time of incident
was on the convict/appellant himself but he
did not adduce any evidence to prove the
same. Secondly, he has stated that the
deceased got burnt accidentally but this fact
is also not believable in the absence of any
evidence/material on record to prove the
accidental
burnt
specially
when
the
contusions were found on the cadaver of
body in the post-mortem-examination. If
the deceased caught fire accidentally, then
how contusions have occurred on her body
has
not
been
explained
by
the
convict/appellant.

11. Learned counsel for the convict/
appellant has tried to justify the contusions
by arguing that these contusions might
occur by dashing with pegs and grass
cutting machine while running here and
there in a burnt state. But no such
suggestion has been made or any question
has been asked in this regard, to the
medical witness i.e. P.W.-7 who conducted
the post mortem examination of the
cadaver. Thus, this argument has no force
in it.

12. Learned counsel for the convict/
appellant has vehemently argued that the
prosecution has to stand on its own legs
and to prove its case beyond all reasonable
doubts and cannot shift the burden on the
convict/ appellant to explain how the death
occurred. He relied upon the extract of the
book C.D. FIELD'S Commentary on LAW
OF EVIDENCE ACT, 1872 and submitted
that Section 106 of the Evidence Act can
have no application where a number of
persons reside in the house and in this case,
as per the statement of P.W.-1, the motherin-law and father-in-law of the deceased
also used to reside in the same house.
Hence, the house was not in the exclusive
possession of the convict/ appellant,
therefore the burden under Section 106 of
the Evidence Act cannot be laid on the
convict/ appellant to explain how the
deceased got burnt and how the contusions
occurred. But this argument of the learned
counsel for the convict/appellant is not
tenable for the reason that the convict/
appellant
himself
has
stated
in
his
statement under Section 313 of the Cr.P.C.
that he used to live with his wife Seema
Devi in his house. He did not say that his
parents were there when accident took
place
or
the
deceased
caught
fire
accidentally while cooking food.

13. In Ranjit Kumar Haldar Vs. State
of Sikkim (supra), Hon'ble Apex Court in
this regard has held as under :-

"14) The general rule is that the
burden of proof is on the prosecution.
Section 106 of the Act was introduced not
to relieve the prosecution of their duty but it
is designed to meet the situation in which it
would be impossible or difficult for the
prosecution to establish facts which are
especially within the knowledge of the
accused.

15) In Shambu Nath Mehra v.
State of Ajmer, AIR 1956 SC 404, the Court
held as under:

"8. ...Section 106 is an exception
to Section 101. Section 101 lays down the
general rule about the burden of proof.

"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."

Illustration (a) says-- "A desires a
court to give judgment that B shall be
punished for a crime which A says B has
committed. A must prove that B has
committed the crime."
778 INDIAN LAW REPORTS ALLAHABAD SERIES

9. 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. 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
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 he did
not commit the crime for which he is tried.
These cases are Attygalle v. Emperor [AIR
1936 PC 169] and Seneviratne v. R.
[(1936) 3 All ER 36, 49].

xx xx xx

11.
We
recognise
that
an
illustration does not exhaust the full
content of the section which it illustrates
but equally it can neither curtail nor
expand its ambit; and if knowledge of
certain facts is as much available to the
prosecution, should it choose to exercise
due diligence, as to the accused, the facts
cannot be said to be "especially" within the
knowledge of the accused. 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."

14. In State of Rajashtan Vs. Thakur
Singh : 2014(12) SCC 211, Hon'ble Apex
Court in this regard has held as under :-

15. We find that the High Court
has not at all considered the provisions of
Section 106 of the Evidence Act, 1872. This
section provides, inter alia, that when any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him.

16. Way back in Shambhu Nath
Mehra v. State of Ajmer this Court dealt
with the interpretation of Section 106 of the
Evidence Act and held that the section is
not intended to shift the burden of proof (in
respect of a crime) on the accused but to
take care of a situation where a fact is
known only to the accused and it is well
nigh impossible or extremely difficult for
the prosecution to prove that fact. It was
said ( AIR P 406, Para 11) :

"11. This [Section 101 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
7 All. Vipin Vs. State of U.P.
779
that are pre-eminently 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."

17. In a specific instance in
Trimukh
Maroti
Kirkan
v.
State
of
Maharashtra this Court held that when the
wife is injured in the dwelling home where
the husband ordinarily resides, and the
husband offers no explanation for the
injuries to his wife, then the circumstances
would indicate that the husband is
responsible for the injuries. It was said :
(SCC p 694, para 22 )

"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."

15. In the present matter, the
convict/appellant though has stated that he
was in the field at the time when the
incident occurred, has not led any evidence
to prove that he was not present in the
house and was in the field. The fact that the
deceased caught fire accidentally while
cooking food is also not believable in the
absence of any evidence/material to prove
that the other goods kept in the same room
where she was allegedly cooking food and
caught accidental fire, were not burnt.
Furthermore, when the convict was not
present at the time of incident, then how he
came to know that his wife caught fire
accidentally while cooking food.

16. Learned counsel for the convict/
appellant has vehemently argued that under
Section 313 of Cr.P.C., the convict was not
asked about the contusions found on the
body of the deceased. So he cannot be
supposed to explain the contusions found
on her body. In support of his contentions,
he relied upon Samsul Haque Vs. State of
Assam (supra) wherein the Hon'ble Apex
Court has laid down as under :-

"22. It is trite to say that, in view
of the judgments referred to by the learned
Senior
Counsel,
aforesaid,
the
incriminating material is to be put to the
accused so that the accused gets a fair
chance to defend himself. This is in
recognition of the principles of audi
alteram partem. Apart from the judgments
referred to aforesaid by the learned Senior
Counsel, we may usefully refer to the
judgment of this Court in Asraf Ali v. State
of Assam. The relevant observations are in
the following paragraphs:

"21. Section 313 of the Code
casts a duty on the Court to put in an
enquiry or trial questions to the accused for
the purpose of enabling him to explain any
of the circumstances appearing in the
evidence against him. It follows as
necessary corollary therefrom that each
material circumstance appearing in the
evidence against the accused is required to
be put to him specifically, distinctly and
separately and failure to do so amounts to
a serious irregularity vitiating trial, if it is
shown that the accused was prejudiced.

22. The object of Section 313 of
the Code is to establish a direct dialogue
between the Court and the accused. If a
780 INDIAN LAW REPORTS ALLAHABAD SERIES
point in the evidence is important against
the accused, and the conviction is intended
to be based upon it, it is right and proper
that the accused should be questioned
about the matter and be given an
opportunity of explaining it. Where no
specific question has been put by the trial
Court on an inculpatory material in the
prosecution evidence, it would vitiate the
trial. Of course, all these are subject to
rider
whether
they
have
caused
miscarriage of justice or prejudice. This
Court also expressed similar view in S.
Harnam Singh v. The State (Delhi Admn.)
(AIR 1976 SC 2140), while dealing with
Section 342 of the Criminal Procedure
Code, 1898 (corresponding to Section 313
of
the
Code).
Non-
indication
of
inculpatory material in its relevant facets
by the trial Court to the accused adds to
vulnerability of the prosecution case.
Recording of a statement of the accused
under Section 313 is not a purposeless
exercise."

17. No doubt the specific question has
not been asked to the convict under Section
313 Cr.P.C. about the contusions found on
the body of the deceased, but a question has
been asked about the burning of Seema
Devi by him after dousing with kerosene
oil. He answered that she caught fire
accidentally and he got her admitted in a
hospital. When he was asked about the
statement of P.W.-7, the doctor who
conducted the post-mortem-examination,
he
showed
his
ignorance.
In
these
circumstances, the referred case law is of
no help to the convict/ appellant as convict/
appellant and the deceased were living in
the same house at the time of the incident
and she died of burn injuries and
contusions were also found on her body
that too on the vital parts of the body. No
other articles of the house were found
burnt. There is no evidence to show that the
convict/ appellant was present at the spot at
the time of incident as he alleges that he
was in the field.

18. As far as argument of learned
counsel for the convict/ appellant about the
demand of money by the complainant is
concerned, it is a very feeble argument, as
the convict himself has stated that after the
death of the deceased, they demanded
money. Even if it is assumed that they
lodged the report for not paying the money
demanded, the factum of death of the
deceased in the house of the convict due to
burn
injuries
alongwith
contusions
received, cannot be wiped out merely on
saying that they demanded money. No
person has been examined even to prove
this fact that the complainant demanded
money. The medical evidence does not
show the accidental death as contusions
were found on the cadaver. The plea of
alibi is to be established with certainty but
no evidence has been led to establish the
fact.

19. In Shaikh Sattar Vs. State of
Maharashtra (supra), the Hon'ble Apex
Court in this regard has held as under :-

"35. Undoubtedly, the burden of
establishing the plea of alibi lay upon the
appellant.
The
appellant
herein
has
miserably failed to bring on record any
facts or circumstances which would make
the plea of his absence even probable, let
alone, being proved beyond reasonable
doubt. The plea of alibi had to be proved
with absolute certainty so as to completely
exclude the possibility of the presence of
the appellant in the rented premises at the
relevant time. When a plea of alibi is raised
by an accused it is for the accused to
establish the said plea by positive evidence
7 All. Sanjay Singh Vs. State of U.P.
781
which has not been led in the present case.
We may also notice here at this stage the
proposition of law laid down in the case of
Gurpreet Singh Vs. State of Haryana,
(2002) 8 SCC 18 as follows:

"20...... This plea of alibi stands
disbelieved by both the courts and since the
plea of alibi is a question of fact and since
both the courts concurrently found that fact
against the appellant, the accused, this
Court in our view, cannot on an appeal by
special leave go behind the above noted
concurrent finding of fact".

20. In the present case, it has not been
explained who caused the contusions. The
deceased caught fire accidentally. It is also
not proved that the convict/appellant was
working in the field at the time of incident.

21. Thus, to sum up, in this matter, the
date and place of occurrence is not disputed.
The medical evidence shows that the
deceased died of ante-mortem burn injuries
and contusions were also found on the
cadaver. The convict/appellant did not prove
the fact that he was in the field at the time of
the incident. The statement of the convict that
deceased caught fire accidentally while
cooking food is not found reliable. The
deceased and convict/ appellant were residing
in the same house at the time of the incident,
then it was the duty of the convict/appellant
to explain how the deceased caught fire and
how contusions occurred on her body. Hence,
the learned trial court has rightly held the
convict /appellant guilty under Section 302
I.P.C. for causing the death of his wife Seema
Devi, and sentenced accordingly. There
appears no reason or ground to interfere with
the conviction and sentence recorded by the
trial Court.

22. In the result, the appeal has no
merit and is hereby dismissed.

23. The convict/appellant Vipin is in
jail. He shall undergo the sentence awarded
by the trial court.

24. Let the original record, received
from trial Court be sent back alongwith the
copy of this judgement, to the court
concerned for information and necessary
action.
----------
(2022)07ILR A781
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.07.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 1387 of 2013

Sanjay Singh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Mr. Jaikaran

Counsel for the Respondent:
Govt. Advocate

Criminal Law- Indian Evidence Act,
1872-
Section
32-
The
dying
declaration of the deceased is very
natural,
cogent,
trustworthy
with
ring of truth as she has given a very
precise statement against the person
who set her ablaze. He has not
implicated any other in-laws in the
crime. This dying declaration has
been corroborated by the statement
of
P.W.10,
P.W3
and
also
by
statement of P.W.1.

Where the court finds the dying declaration
to be cogent, true and trustworthy and has
been
further
corroborated
by
other
evidence then the same can be solely relied
upon to convict the accused.