# CASE DETAILS BALVIR SINGH v. STATE OF UTTARAKHAND

- **Citation:** 2023 INSC 879
- **Court:** Supreme Court of India
- **Decided:** 2023-10-06
- **Case number:** Criminal Appeal No. 301 of 2015
- **Bench:** J. B. Pardiwala, Prashant Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-balvir-singh-v-state-of-uttarakhand-36601
- **Pages:** 38

## Headnote

Issue for consideration: The High Court affi rmed the judgment and
order of conviction passed by the Trial Court holding appellant-husband
guilty of the off ence of murder punishable u/s.302 of the IPC alongwith the
off ence punishable u/s. 498A of the IPC and appellant-mother-in-law guilty
of the off ence punishable u/s. 498A of the IPC r/w. 34 of the IPC, whether
the High Court committed any error in passing the impugned judgment
and order.
Penal Code, 1860 - s.302, s.498A - Prosecution case was that victim
died due to poisoning - At the time of death only her appellant-husband
was present - Poison was found in the examination of viscera of the
deceased - Appellant-husband had not informed family of victim after
her death - Earlier, victim-deceased had written letters to her family
informing them regarding harassment from her appellant-husband and
appellant-mother-in-law for dowry:
Held: The cause of death was due to poisoning - The poison detected
in the viscera was aluminium phosphide, which is used a fumigant to control
the insects and rodents - Defense of the convicts to say that the presence of
aluminium phosphide in the viscera could be due to the medicines which
the deceased used to take for her heart ailment cannot be accepted - No
evidence led by the appellant-husband that he had taken victim to the hospital
in Delhi - The dubious conduct of the convict-husband of not informing the
family members about the death of their daughter - In the case on hand it
has been established or rather proved to the satisfaction of the court that the
deceased was in company of her husband i.e., the appellant-convict at a point
[2023] 12 S.C.R. 815 : 2023 INSC 879
815
SUPREME COURT REPORTS
[2023] 12 S.C.R.
816
of time when something went wrong with her health and therefore, in such
circumstances the appellant-convict alone knew what happened to her until
she was with him - Appellant-convict (husband) has not explained in any
manner as to what had actually happened to his wife more particularly when
it is not in dispute that the appellant-convict was in company of his wife i.e.,
deceased - Although, the appellant-convict tried to project a picture that no
sooner the deceased fell sick than he immediately took her to the Hospital at
Delhi - If it is his case, that his wife was declared dead on being brought at
the hospital then it is diffi cult to believe that the hospital authorities allowed
the appellant to carry the dead body back home without completing the
legal formalities - The circumstances in the instant case constitute more
than a prima facie case to enable the prosecution to invoke s.106 of the
Evidence Act and shift the burden on the accused husband to explain what
had actually happened on the date his wife died - Section 106 does not cast
any burden upon an accused in a criminal trial, but that, where the accused
throws no light at all upon the facts which ought to be especially within his
knowledge, and which could support any theory of hypothesis compatible
with his innocence, the Court can also consider his failure to adduce any
explanation, in consonance with the principle of the passage in Deonandan
Mishra - The courts would deal with such cases in a more realistic manner
and not allow the criminals to escape on account of procedural technicalities,
perfunctory investigation or insignifi cant lacunas in the evidence - In result,
both the appeals fail. [Paras 29,52,53,56,61 and 62]
Evidence Act, 1872 - s.106 - Applicability - Meaning of word
"especially":
Held: s.106 of the Evidence Act 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 modifi ed by the rule of facts
embodied in s.106 of the Ev

## Text

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CASE DETAILS
BALVIR SINGH
v.
STATE OF UTTARAKHAND
(Criminal Appeal No. 301 of 2015)
OCTOBER 06, 2023
[J. B. PARDIWALA AND PRASHANT KUMAR MISHRA, JJ.]
HEADNOTES
Issue for consideration: The High Court affi rmed the judgment and
order of conviction passed by the Trial Court holding appellant-husband
guilty of the off ence of murder punishable u/s.302 of the IPC alongwith the
off ence punishable u/s. 498A of the IPC and appellant-mother-in-law guilty
of the off ence punishable u/s. 498A of the IPC r/w. 34 of the IPC, whether
the High Court committed any error in passing the impugned judgment
and order.
Penal Code, 1860 - s.302, s.498A - Prosecution case was that victim
died due to poisoning - At the time of death only her appellant-husband
was present - Poison was found in the examination of viscera of the
deceased - Appellant-husband had not informed family of victim after
her death - Earlier, victim-deceased had written letters to her family
informing them regarding harassment from her appellant-husband and
appellant-mother-in-law for dowry:
Held: The cause of death was due to poisoning - The poison detected
in the viscera was aluminium phosphide, which is used a fumigant to control
the insects and rodents - Defense of the convicts to say that the presence of
aluminium phosphide in the viscera could be due to the medicines which
the deceased used to take for her heart ailment cannot be accepted - No
evidence led by the appellant-husband that he had taken victim to the hospital
in Delhi - The dubious conduct of the convict-husband of not informing the
family members about the death of their daughter - In the case on hand it
has been established or rather proved to the satisfaction of the court that the
deceased was in company of her husband i.e., the appellant-convict at a point
[2023] 12 S.C.R. 815 : 2023 INSC 879
815
SUPREME COURT REPORTS
[2023] 12 S.C.R.
816
of time when something went wrong with her health and therefore, in such
circumstances the appellant-convict alone knew what happened to her until
she was with him - Appellant-convict (husband) has not explained in any
manner as to what had actually happened to his wife more particularly when
it is not in dispute that the appellant-convict was in company of his wife i.e.,
deceased - Although, the appellant-convict tried to project a picture that no
sooner the deceased fell sick than he immediately took her to the Hospital at
Delhi - If it is his case, that his wife was declared dead on being brought at
the hospital then it is diffi cult to believe that the hospital authorities allowed
the appellant to carry the dead body back home without completing the
legal formalities - The circumstances in the instant case constitute more
than a prima facie case to enable the prosecution to invoke s.106 of the
Evidence Act and shift the burden on the accused husband to explain what
had actually happened on the date his wife died - Section 106 does not cast
any burden upon an accused in a criminal trial, but that, where the accused
throws no light at all upon the facts which ought to be especially within his
knowledge, and which could support any theory of hypothesis compatible
with his innocence, the Court can also consider his failure to adduce any
explanation, in consonance with the principle of the passage in Deonandan
Mishra - The courts would deal with such cases in a more realistic manner
and not allow the criminals to escape on account of procedural technicalities,
perfunctory investigation or insignifi cant lacunas in the evidence - In result,
both the appeals fail. [Paras 29,52,53,56,61 and 62]
Evidence Act, 1872 - s.106 - Applicability - Meaning of word
"especially":
Held: s.106 of the Evidence Act 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 modifi ed by the rule of facts
embodied in s.106 of the Evidence Act - s.106 of the Evidence Act is an
exception to s.101 of the Evidence Act. [Para 34]
Evidence Act, 1872 - s.106 does not absolve the prosecution from
duty of proving crime:
817
Held: Section 106 cannot be invoked to make up the inability of the
prosecution to produce evidence of circumstances pointing to the guilt of
the accused - This section cannot be used to support a conviction unless the
prosecution has discharged the onus by proving all the elements necessary to
establish the off ence - It does not absolve the prosecution from the duty of
proving that a crime was committed even though it is a matter specifi cally
within the knowledge of the accused and it does not throw the burden of
the accused to show that no crime was committed. [Para 42]
Evidence Act, 1872 - s.106 - Distinction exists between the burden
of proof and the burden of going forward with the evidence:
Held: Generally, the burden of proof upon any affi rmative proposition
necessary to be established as the foundation of an issue does not shift, but
the burden of evidence or the burden of explanation may shift from one
side to the other according to the testimony - Thus, if the prosecution has
off ered evidence which if believed by the court would convince them of the
accused's guilt beyond a reasonable doubt, the accused is in a position where
he should go forward with counter-vailing evidence if he has such evidence
- When facts are peculiarly within the knowledge of the accused, the burden
is on him to present evidence of such facts, whether the proposition is an
affi rmative or negative one - He is not required to do so even though a
prima facie case has been established, for the court must still fi nd that he
is guilty beyond a reasonable doubt before it can convict - However, the
accused's failure to present evidence on his behalf may be regarded by the
court as confi rming the conclusion indicated by the evidence presented
by the prosecution or as confi rming presumptions which might have been
rebutted. [Para 46]
Evidence Act, 1872 - s.106 - "Prima facie" in context of s.106:
Held: Section 106 of the Evidence Act would apply to cases where the
prosecution could be said to have succeeded in proving facts from which a
reasonable inference can be drawn regarding death. [Para 48]
LIST OF CITATIONS AND OTHER REFERENCES
Shambhu Nath Mehra v. The State of Ajmer AIR 1956 SC 404 : [1956]
SCR 199; Nagendra Sah v. State of Bihar (2021) 10 SCC 725; Tulshiram
BALVIR SINGH v. STATE OF UTTARAKHAND
SUPREME COURT REPORTS
[2023] 12 S.C.R.
818
Sahadu Suryawanshi and Another v. State of Maharashtra (2012) 10 SCC
373 : [2012] 7 SCR 1083; Trimukh Maroti Kirkan v. State of Maharashtra
(2006) 10 SCC 681 : [2006] 7 Suppl. SCR 156; State of W.B. v. Mir
Mohammad Omar and Others (2000) 8 SCC 382 : [2000] 2 Suppl. SCR
712; Ram Gulam Chaudhary and Others v. State of Bihar (2001) 8 SCC
311 : [2001] 3 Suppl. SCR 279; Deonandan Mishra v. The State of Bihar
AIR 1955 SC 801; Kalu alias Laxminarayan v. State of Madhya Pradesh
(2019) 10 SCC 211 : [2019] 14 SCR 327; Sawal Das v. State of Bihar (1974)
4 SCC 193 : [1974] 3 SCR 74 - relied on.
Leland v. State 343 U.S. 790=96 L.Ed. 1302; Raff el v. U.S. 271 U.S.
294=70 L.Ed. 1054 - referred to.
Smith v. R. 1918 A.I.R. Mad. 111 - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
301 of 2015.
From the Judgment and Order dated 24.03.2014 of the High Court of
Uttarakhand at Nainital in CRLA No.273 of 2013.
With
Criminal Appeal No. 2430 of 2014.
Appearances:
Manisha Bhandari, Omkar Shrivastava, Divyadeep Chaturvedi, Ayush
Jain, Dhruv Chandra, Shashwat Sidhant, Advs. for the Appellant.
Jatinder Kumar Bhatia, Krishnam Mishra, Param Kumar Mishra,
Rajeev Kumar Dubey, Kamlendra Mishra, Advs. for the Respondent.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
J. B. PARDIWALA, J.:
1. Since both the captioned appeals arise from a common judgment
and order passed by the High Court dismissing two criminal appeals of two
819
accused persons tried in one sessions case those were heard analogously
and are being disposed of by this common judgment and order.
2. These appeals are at the instance of two convicts and are directed
against a common judgment and order dated 24.03.2014 passed by the High
Court of Uttarakhand at Nainital in the Criminal Appeal No. 273 of 2013
and Criminal Appeal No. 274 of 2013 respectively by which the High Court
dismissed both the appeals and thereby affi rmed the judgment and order of
conviction passed by the Additional District and Sessions Judge Kotdwar,
Garhwal in the Sessions Trial No. 48 of 2008 holding Balvir Singh (husband)
guilty of the off ence of murder punishable under Section 302 of the Indian
Penal Code, 1860, (for short, 'the IPC') alongwith the off ence punishable
under Section 498A of the IPC and Maheshwari Devi (mother-in-law) guilty
of the off ence punishable under Section 498A of the IPC read with Section
34 of the IPC.
CASE OF THE PROSECUTION
3. The deceased, namely, Sudha was married to Balvir Singh. The
marriage of the deceased with Balvir Singh was solemnised on 12.12.1997.
In the wedlock a son was born. On 02.06.2007, father of the deceased,
namely, Virendra Singh (PW1) preferred an application in the court of the
Judicial Magistrate First Class, Kotdwar, Garhwal under Section 156(3)
Code of Criminal Procedure, 1973 (for short, 'the CrPC'), seeking a direction
to the Police to register an FIR in connection with the death of his daughter
in suspicious circumstances. The Judicial Magistrate First Class, Kotdwar,
Garhwal, passed the following order dated 04.06.2006:
"Order
04.06.2006
Applicant Virendra Singh had fi led application under section 156(3)
Cr.P.C. for passing order for registration of First Information Report
against accused persons, wherein, applicant has mentioned as under that
marriage of daughter of applicant Sudha had been solemnized on 12.12.1997
with Balvir Singh son of late Mahavir Singh, resident of village Ratanpur,
Kumbhuchau, Halqa-Saneh, Kotdwar, Garhwal at Uttari Jhandichaur, Police
Station Kotdwar and out of their wedlock, one son was born to them. After
sometime from solemnization of marriage Balvir Singh and Smt. Maheshwari
BALVIR SINGH v. STATE OF UTTARAKHAND
[J. B. PARDIWALA, J.]
SUPREME COURT REPORTS
[2023] 12 S.C.R.
820
Devi mother of Balvir Singh connived together and started harassing my
daughter in diff erent ways and started raising demand of Rs. One lakh cash
in dowry. Applicant's daughter informed applicant about the same through
letters. Balvir Singh has been working in a Private Nursing Home in Delhi
and he is very well acquainted with medicines. According to the Applicant,
Balvir Singh before committing murder of his daughter managed to arrange
fake prescription slips which he has kept with him. Despite reluctance of
his daughter, on 09.05.07 Balvir left his son at Kotdwar and forcibly took
my daughter Sudha who was in healthy condition to Mangolpuri, Delhi.
Before leaving, Applicant's daughter expressed her wish to her uncle over
telephone about her reluctance for going to Delhi. On 13.05.07 at about
1.30 o'clock in the night Applicant's younger brother Harender Singh
received information from Delhi over phone that his daughter Sudha has
all of a sudden left for her heavenly abode in Mangolpuri. Balvir Singh did
not give this information to any of the other family member rather some
neighbour gave this information to the younger brother of Harender Singh;
Shivcharan, who resides in Delhi. Shivcharan visited Mangolpuri in the night
itself, where he came to know that she was in good health on that night and
Balvir Singh after the death of the deceased, took her dead body to his home
at Ratanpur, Kotdwar by private ambulance without giving information to
anyone. When the applicant came to know about this fact, he informed the
police of Police Station Kotdwar. There were reddish injury marks apparent
on the throat of the applicant's daughter, due to which the Police initiated
inquest proceedings and arranged postmortem of the dead body.
On calling for the report from Police Station on the application fi led
by applicant, Police Station has submitted that no First Information Report
is lying registered at Police Station on the basis of facts mentioned in the
application moved by applicant under section 156(3) Cr.P.C Applicant
has fi led photocopies of letters written by his daughter and photocopies
of applications lodged by him with Inspector Incharge of Police Station
Kotdwar and Deputy District Magistrate, Kotdwar in court in support of
his application fi led under section 156(3) Cr.P.C.
On the basis of documents filed by applicant in support of his
application, prima facie off ence seems to be made out. Therefore, in such
circumstances, registration of First Information Report seems to be essential.
821
Therefore, S.H.O., Police Station Kotdwar is ordered that hiving registered
First Information Report in the light of application fi led by applicant under
section 156(3) Cr.P.C and to conduct investigation.
Sd/-
 Judicial Magistrate"
4. Pursuant to the aforesaid order passed by the learned Judicial
Magistrate, the First Information Report came to be registered at the
Kotdwar Police Station on 09.06.2007 for the off ence punishable under
Sections 302, 498A read with Section 34 of the IPC and Sections 3 and
4 respectively of the Dowry Prohibition Act, 1961 (for short, 'the Act
1961'). The First Information Report reads thus:
"Sir, Applicant Virendra Singh, son of late Mohan Singh, resident
of Village Mawasa, Patti -Ajmer Pall, Tehsil Kotdwar Garhwal
respectfully submits as under:-
1. That the marriage of my daughter Sudha had been solemnized on
12.12.1997 with Balvir Singh, son of late Mahavir Singh, resident of
village Ratanpur, Kumbhuchaur, Halqa-Saneh, Kotdwar, Garhwal,
from the house of my younger brother located at Uttari Jhandichaur,
Police Station Kotdwar and out of the wedlock, one son was born
to them.
2. That sometime after marriage, Balvir Singh and Smt. Maheshwari
Devi who is the mother of Balvir Singh, in connivance with him,
started harassing my daughter in diff erent ways and raising demand
of Rupees One lakh cash in dowry. Smt. Maheshwari Devi has been
getting pension and also owns landed property. Balvir Singh is a
greedy person and under the greed of pension of his mother, he has
been harassing my daughter and subjecting her to beatings, not
providing food to her, and that the women of the village somehow
provided her food by hiding themselves from these people. My
daughter wrote letters to us complaining about this fact. When
Balvir Singh and his mother came to know about these letters, then
they pressurized my daughter for asking back the said letters and we
accordingly returned those letters, but letter dated 20.05.04 which
has been lodged by us at Police Station, remained with us. In this
BALVIR SINGH v. STATE OF UTTARAKHAND
[J. B. PARDIWALA, J.]
SUPREME COURT REPORTS
[2023] 12 S.C.R.
822
letter also my daughter has put her grievances and harassment that
she faced.
3. That on getting knowledge of this incident me, my few relatives,
Panch, and Pradhan Ratanpur visited and tried to convince Balvir
Singh and his mother not to indulge in such acts so that in future my
daughter may stay there properly and I did not lodge any report.
However, Maheshwari Devi and Balvir Singh kept on hatching
conspiracy for eliminating my daughter Sudha. Once they had made
my daughter consumed poison also but my daughter had not told this
fact to anyone.
4. That Balvir Singh has been working in a Private Nursing Home
in Delhi and he is very well acquainted with medicines. Before
committing murder of my daughter, he managed to arrange fake
and forged prescription slips, which has been shown to police also,
and investigation about these slips & medicines is required. Despite
reluctance of my daughter on 09.05.07 Balvir left his son at Kotdwar
in healthy condition and took my daughter Sudha at Mangolpuri, Delhi
forcibly. Before leaving, my daughter expressed her unwillingness to
go to Delhi, to my younger brother Harender over telephone.
5. That on 13.05.07 at about 1.30 o'clock in the night my younger
brother Harender Singh received information from Delhi over phone
that my daughter Sudha has left for her heavenly abode all of a sudden
in Mangolpuri. Balvir Singh did not give this information to any of
our family member rather some neighbour gave this information to
the younger brother of Harender Singh; Shivcharan, who resides in
Delhi. Shivcharan visited Mangolpuri in the night, where he came
to know that my daughter was in good health on that night and
Balvir Singh after the death of my daughter, took her dead body to
his home at Ratanpur, Kotdwar by private ambulance without giving
information to anyone. When we came to know about this fact, then
we informed the police of Police Station Kotdwar but we could not
provide all details at that time. As reddish injury marks were apparent
on the neck of my daughter, Police initiated inquest proceedings and
arranged postmortem of her dead body. Sir, I have reason to believe
that the said Maheshwari Devi and her son Balvir Singh have killed
823
my daughter having hatched a conspiracy and have also induced her
little child also in their favour.
6. That her mother-in law and her husband Balvir Singh caused
inhuman harassment to my daughter which amounts to a heinous
crime. Photocopies of her letters are being annexed herewith. I had
lodged report at Police Station and Deputy District Magistrate also
that she has been killed, but no fi rst information report has not been
registered till now. Therefore, it is prayed to please order police of
Police Station Kotdwar to register First Information Report and get
the off enders punished for the off ence committed by them.
Dated : 02.06.07. Applicant - Sd/- Virendra Singh son of late Mohan
Singh, resident of Village Mawasa, Patti -Ajmer Palla, Tehsil -
Kotdwar, District -Pouri Garhwal.
Note: I, HC 14 Kabool Singh Prajapati do hereby certify that copy of
formal report has been recorded word to word which is clearly legible.
Sd/-
HC 14 Kabool Singh
 Police Station Kotdwar
Dated : 09.06.07"
5. Upon registration of the FIR, the investigation was carried out.
The dead body of the deceased on being brought from Delhi to Kotdwar,
was sent for post mortem. The inquest panchnama was drawn in presence
of the independent panch witnesses. The statements of various witnesses
were recorded by the investigating offi cer under Section 161 of the CrPC.
The viscera collected during the course of the post mortem was sent to the
forensic science laboratory. Both the appellants herein were arrested and
remanded to judicial custody.
6. Upon conclusion of the investigation, chargesheet was fi led for the
off ences enumerated above. To the charge framed by the trial court vide order
dated 21.02.2009, the appellants pleaded not guilty and claimed to be tried.
7. The prosecution led the following oral evidence:
a.
PW1 Virendra Singh (Father of the deceased)
BALVIR SINGH v. STATE OF UTTARAKHAND
[J. B. PARDIWALA, J.]
SUPREME COURT REPORTS
[2023] 12 S.C.R.
824
b.
PW2 Dr. Indra Singh Samant, Govt. Hospital (the Doctor who
performed the post mortem)
c.
PW3 Harender Singh (Uncle of the deceased)
d.
PW4 Balbir Singh (Another uncle of the deceased)
e.
PW5 M.M.S. Bisht (Senior Sub Inspector)
f.
PW6 Baldev Singh (Panch witness to the inquest proceedings)
h.
PW7 Kabool Singh (Head Constable)
8.
Prosecution also led documentary evidence as under:
a.
Post mortem report Exh.Ka-4
b.
Inquest report Exh. Ka-5
c. Two letters written by the deceased to her father i.e., PW1 Exh.
Ka-1 and Ka-2.
9. The appellants herein examined Shivam Rawat the son of the
deceased as a defence witness (DW-1). The appellants also examined
one Anoop Singh cousin brother of the deceased as a defence witness
(DW-2).
10. Upon conclusion of the oral evidence, the further statement of
both the appellants was recorded by the trial court. Two specifi c questions
were put by the trial court to the convict Balvir Singh and the reply to the
two questions were as under:
"Question No. 14:- Do you have anything else to say?
Answer:- I am innocent. Complainant has lodged a false case.
Question No. 15 :- Poison has been found in the examination of viscera
of the deceased. What do you have to say in this regard?
Answer:- I do not have knowledge as to how the poison has been found,
but the deceased was a heart patient and used to consume medicines."
11. The mother-in-law of the deceased stated in her further statement
recorded under Section 313 CrPC that she was innocent and had been
falsely implicated.
825
12. The trial court upon appreciation of the oral as well as documentary
evidence on the record held the husband guilty of the off ence of murder
punishable under Section 302 of the IPC and also for causing harassment
punishable under Section 498A of the IPC. The trial court sentenced the
husband to undergo rigorous imprisonment with fi ne of Rs. 10,000/- The
mother-in-law, namely, Maheshwari Devi came to be acquitted by the trial
court of the off ence of murder, however, she stood convicted by the trial
court for the off ence punishable under Section 498A of the IPC and was
sentenced to undergo 21⁄2 years of imprisonment.
13. The trial court while holding the appellants guilty of the off ence
enumerated above, recorded the following fi ndings:
"21. Deceased died of poison. Although prosecution could not bring
clear evidence that victim was administered poison by accused, but
regarding harassment PW-1 and PW-2 have produced evidence. This
is established by Exhibit A1 and Exhibit A2 too. Moreover, after her
death poison was found in viscera report. However, nothing has been
said by the defence about how it entered the body of the deceased.
Accused statement was registered under section 313 of Criminal
Procedure Code and he was clearly asked that poison was found in
deceased's visceral examination report, what you have to say about
it? Regarding this accused Balvir Singh said that "I do not have
knowledge how it was found, but deceased was heart patient and
was on medication". Regarding this, defence examined DW-1 who
is deceased's son and who said in his examination-in-chief that "my
mother was undergoing treatment at Delhi, where she died". He further
said "my grandmother and father love me a lot and treated my mother
nicely". He is a child witness. This witness told that the death of the
deceased took place during treatment but, nothing is said about where
she was undergoing treatment, or how she died. Defence argued that
deceased was a heart patient and because of which death occurred but
this argument is negated by viscera report. DW-2 produced by defence
said in his examination-in-chief that "accused was getting the deceased
continuously treated at Delhi. Deceased Sudha was distressed because
of her illness. Accused use to take care of Sudha. Balvir Singh and
his mother did not harass her, and that she may have done something
BALVIR SINGH v. STATE OF UTTARAKHAND
[J. B. PARDIWALA, J.]
SUPREME COURT REPORTS
[2023] 12 S.C.R.
826
to herself because of her illness". This witness produced by defence
has based his evidence on new facts. During cross-examination,
examination of prosecution witness by defence, no question regarding
such matter was asked as to whether the deceased was distressed either
before her illness or because of her illness. DW-1 who is deceased's
son and on whom defence stressed upon, has not stated anything
regarding the deceased being distressed due to her illness. DW-1 has
only stated that death occurred during treatment, while DW-2 has
based his evidence on new facts which are not concurring with the facts
of defence because they have said that treatment was given at Escorts
Hospital. Regarding this defence has questioned PW-1 that in year
2006 accused paid a bill of rupees 3,82,500/-at Escorts Hospital which
was refuted by him. Regarding this defence has produced documents.
I have examined those documents. Although defence have not proved
those documents but in fi le page number 48A/2 a document of rupees
3,82,500/-is present which was given by Dr. Nitish Chandra, but said
document is not a bill of payment instead it is an estimate required
for complete checkup and operation, because in the document it is
written that -'Advance payment may please be made at the time of
admission by case/demand draft in favour of Escorts Heart Institute
and Research Centre Ltd. Payable at New Delhi'. By looking at the
document it is clear that accused and others did not pay any money.
Apart from this there is no document in the fi le for payment of rupees
3,82,500/-. regarding this there is no statement from defence.
22. Apart from this prosecution witness PW-4's cross-examination
was conducted. In his cross-examination by defence the witness has
said "it is true that in the inquest report deceased's husband stated
that my wife after delivery of son, used to remain ill. Often, she had
episodes of unconsciousness. On the night of 13 May 2007 at 10:00
pm, she had an attack and did not regain consciousness. I took her
to Sanjay Gandhi Memorial Hospital, where she was declared dead
by the Doctor". This witness gave statement in his cross-examination
that deceased died at Sanjay Gandhi Memorial Hospital regarding
which no document was fi led. Although this witness in his crossexamination also admitted that he was told this by Balvir Singh. This
witness is supporting defence, but this witness statement is contrary to
827
the oral and documentary evidence in the fi le. If the accused admitted
deceased to Sanjay Gandhi Memorial Hospital after she had an attack
on 13.5.2007, then there are no documents regarding this in the fi le
and the defence has not given any statement as to this.
23. Defence has argued that deceased Sudha died on 13.5.2007. On
13.5.2007 her last rites were performed and complainant got the case
registered under· section 156(3) on 2.6.2007. Application was fi led
very late and this delay has not been. explained. I am not in agreement
with this argument of defence. Victim died on 13.5.2007 and it is said
that on 13.5.2007 her last rites were performed, but on receiving the
news of death prosecution witness immediately put forward his doubt.
In inquest report it is clearly written that deceased Sudha's death is
suspicious, and postmortem should be done. In above said inquest
report PW-1 is one of the witnesses, he is deceased's father too. and
was examined as PW1. During evidence witness has said that "Balvir
lives in Mangolpuri at Delhi. Shivcharan was informed by neighbours
that Sudha had died and they brought the dead body to Ratanpur. Next
day I came to Kotdwar. I gave this information to Police station. Then
Police and I came to Ratanpur. There police prepared inquest report. In
inquest report I too was made a witness". As soon as witness received
this information he raised a suspicion on the incident. Police station
was informed. This witness further said "I wrote a letter to Police
station to investigate into her death. In this regard I made a written
complaint to S.D.M., Kotdwar". This witness further said "then, with
my lawyer's help I fi led a petition under section156(3) of Criminal
Procedure Code on which court ordered to register a case". This
witness on receiving information about incident immediately raised
suspicion and asked for a postmortem to be carried out. On 14.5.2007
an application was written to Police station to investigate into the
death of the Deceased. Police made inquest report and conducted
postmortem. In this situation, defence cannot take benefi t of the fact that
complaint was registered under section 156(3) of Criminal Procedure
Code, because this witness had informed Police station and S.D.M.
Because of this information given by him to police, police came to
spot and made inquest report.
BALVIR SINGH v. STATE OF UTTARAKHAND
[J. B. PARDIWALA, J.]
SUPREME COURT REPORTS
[2023] 12 S.C.R.
828
24. In viscera report FSL has detected poison, in such situation the
burden was on accused to prove whether deceased herself consumed
poison and whether the deceased was under mental stress due to
which she might have consumed poison, but defence did not make any
statement of such kind during the whole trial. In the end DW-2 has
presented this evidence that deceased was distressed because of her
illness, but during the whole trial defence argued that deceased was
a heart patient and was on treatment for it. Defence has argued that
deceased was on medication and that because of chemical reaction
medicine can naturally convert into poison, but no evidence was
produced by defence regarding this, and no medical opinion was
taken that deceased was taking medicine of such nature which due to
chemical reaction could convert into poison in the body. As this was
brought up by defence, in such situation burden was on them to prove
it, but no statement was made about it. According to Indian Evidence
Act section 114(g) - that evidence which could be and is not produced
would, if produced, be unfavourable to the person who withholds it.
25. In the presenting case this is argued by defence that because of
chemical reaction medicine can turn into poison in deceased's body,
therefore the burden of proof was on defence, but regarding this no
evidence was produced by defence. In such situation under section
114(g) it is important to presume that if any evidence was produced
by accused then it would have been against him, because of which
no evidence was produced by defence. But deceased's death took
place at Delhi. Accused Balvir Singh brought dead body from Delhi
to Kotdwar. PW-1 in his examination-in-chief has said that "it is true
that my daughter was living with accused at Delhi". On the basis of
statement given by PW-1, deceased's death took place at Delhi, where
she was living with accused Balvir Singh. On the basis of viscera report
deceased died of poison. At the time of death only accused Balvir
Singh was present. Accused Maheshwari Devi was not in Delhi. Since,
deceased died at Delhi, in such situation charge under, section 302 of
Indian Penal Code is not found against Maheshwari Devi.
26. As far as the question of dowry is concerned, PW-1 and PW-2
have adduced evidence in this matter against accused Balvir Singh
829
and Shrimati Maheshwari Devi that they are demanding dowry. This
fact is also proved by document letters exhibit A-1 and exhibit A-2
present in the fi le. Charge under section 498A of Indian Penal Code
against accused Balvir Singh and Shrimati Maheshwari Devi is proved
beyond doubt.
27. After above arguments I have reached the conclusion that
prosecution has proved that accused Balvir Singh and Maheshwari
Devi mistreated and harassed deceased for dowry and demanded
rupees 1 lakh from deceased. Therefore accused Balvir Singh and
Maheshwari Devi are fi t to be convicted under section 498A/34 Indian
Penal Code. Because in this incident deceased has died and it has
come up in the evidence that deceased was living with accused Balvir
Singh in Delhi, therefore charge under section 302 of Indian Penal
Code against accused is proved and he is fi t to be convicted for the
said charge. As prosecution could not prove that accused Shrimati
Maheshwari Devi was at Delhi with Balvir Singh during the time
of deceased's death and no role of Maheshawari Devi is proved in
deceased's death, therefore no charge under section 302 of Indian
Penal Code is proved against Shrimati Maheshwari Devi and therefore,
she is fi t to be discharged of the above said charge."
14. The appellants feeling dissatisfi ed with the judgment and order
of conviction passed by the trial court went in appeal before the High
Court. The High Court dismissed both the appeals and thereby affi rmed the
judgment and order of the conviction passed by the trial court. The High
Court while affi rming the judgment and order of conviction passed by the
trial court held as under:
"3. In the chargesheet it was clearly held out that the death, in the
instant case, was by poisoning. No sooner, the death was reported,
PW1, looking at the dead body, insisted for an inquest and the same
was done. In course of inquest, he expressed doubt as to the cause
of death and demanded post-mortem. Accordingly, post-mortem was
done. The doctor, who conducted post-mortem, could not determine
the reason for the death. He, accordingly, preserved a part of the heart
and the viscera of the deceased for the purpose of analysis. Viscera
was sent for analysis and Forensic Science Laboratory, Agra, to whom
BALVIR SINGH v. STATE OF UTTARAKHAND
[J. B. PARDIWALA, J.]
SUPREME COURT REPORTS
[2023] 12 S.C.R.
830
the same was sent, reported that the same contained poison known as
"Aluminium Phosphide". All these facts were in the charge- sheet. The
death, according to the chargesheet, had taken place at Delhi, when
A1 alone was present with the victim. It is A1, who caused the dead
body of the victim to be brought to Ratanpuri, Kotdwara. It was not the
contention of A1 that the victim, at any point of time, had any suicidal
tendency or that he suspects that the victim committed suicide. It was
the contention of A1, as is evident from the trend of cross-examination
of the prosecution witnesses, and, in particular, suggestions given to the
prosecution witnesses that the victim was suff ering from heart disease,
for that, matter required frequent treatment and administration of
medicine. It was suggested that such medicine, so administered, turned
into the aforementioned poison. That being an assertion on behalf of
A1, it was he, who was required to establish the same by tendering
adequate evidence, which he miserably failed. A dead person, whose
cause of death was by poisoning, was, accordingly, found on the lap of
A1. A1 had special knowledge pertaining thereto. He failed to disclose·
anything in relation thereto. The Court below, in the circumstances,
has taken adverse inference against A 1 under Section 114(g) of the
Evidence Act. We think that the Court below was entitled to take such
inference in the backdrop of the case as depicted above.
4. We, accordingly, fi nd no reason for interference. The Appeal
is dismissed. The judgment of the Court below is affi rmed. The
Application (CRMA No. 1744 of 2013) fi led for examining applicant
as witness for the defence is not pressed. The same is dismissed. A1 is
in Jail. He will serve out the sentence as awarded by the Court below.
A2 is on bail. Her bail bond is cancelled. She is directed to surrender
forthwith to serve out the sentence awarded against her."
15. In such circumstances referred to above, the appeals are here before
this Court with the captioned two appeals.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
16. Ms. Manisha Bhandari, the learned counsel appearing for the
appellant vehemently submitted that the trial court as well as the High Court
committed a serious error in holding the appellants guilty of the off ence as
enumerated above. It was argued that the case is one of "No Evidence" so
831
far as the charge of murder is concerned. According to the learned counsel,
the husband was working in Delhi past sometime before the date of incident
whereas the deceased along with her son was staying at their native home
town in the State of Uttarakhand. It was also sought to be argued that the
deceased was not keeping well as she was suff ering from a heart ailment.
It was pointed out from the post mortem report as well as from the oral
evidence of the doctor that the deceased had an enlarged heart and the
ailment relating to heart could be the cause of sudden death. The learned
counsel in the alternative put forward the theory of suicide. This theory of
suicide was put forward by the defence on the basis of the fact that poison
was detected in the viscera, in the form of "aluminium phosphide". An
attempt was made to argue that the deceased might have consumed poison
and committed suicide as she was tired of her ailment.
17. It was also argued that the evidence of the two defence witnesses
would suggest that there was no harassment of any nature to the deceased
either by the husband nor by the mother-in-law. It was also argued that
no sooner the deceased passed away than the husband immediately
informed the family members of the deceased about her sudden death.
It is the husband who carried the dead body from Delhi to his village at
Uttarakhand.
18. It was argued that the entire case hinges on circumstantial evidence.
It is a primary principle that the accused must be and not merely may be
guilty.
19. The learned counsel submitted that the facts which, the prosecution
has so established should be consistent only with the hypothesis of the guilt
of the accused that is to say, they should not be explainable on any other
hypothesis except that the accused is guilty. The circumstances are not of
a conclusive nature and tendency. The circumstances do not exclude every
possible hypothesis except the one to be proved.
20. In the last, the learned counsel submitted that this Court may set
aside the conviction for the off ence of murder and substitute the same with
the off ence of abetting the commission of suicide punishable under Section
306 of the IPC. It was pointed out that the convict-husband is undergoing
sentence past more than 9 years.
BALVIR SINGH v. STATE OF UTTARAKHAND
[J. B. PARDIWALA, J.]
SUPREME COURT REPORTS
[2023] 12 S.C.R.
832
21. In such circumstances referred to above, the learned counsel prayed
that there being merit in both her appeals, those may be allowed.
SUBMISSIONS ON BEHALF OF THE STATE
22. Mr. Jatinder Kumar Bhatia, the learned counsel appearing
for the State vehemently submitted that no error not to speak of any
error of law could be said to have been committed by the High Court
as well as by the trial court in holding the appellants guilty of the
respective offences.
23. It was sought to be vehemently argued that the deceased along
with her son was residing at their village whereas the husband was doing
some job in Delhi. The husband on the pretext of medical treatment
of the deceased brought her from the village to Delhi and within three
days of their arrival in Delhi, the incident occurred. It was argued that
if the case put forward by the husband is to be accepted then it is to
be believed that while something went wrong with the deceased, the
husband was very much present because according to the husband he
had immediately taken the deceased to the Sanjay Gandhi Hospital.
On being declared dead at the hospital, he thereafter brought the dead
body to the village.
24. In such circumstances referred to above, the learned counsel
appearing for the State submitted that in view of Section 106 of the
Indian Evidence Act, 1872 (for short, 'the Evidence Act' or 'the Act
1872'), it is for the convict-husband to explain as to what had actually
transpired. It is the convict-husband who could be said to be in special
knowledge of things that might have transpired at the relevant point
of time.
25. It was argued that the presence of poison in the viscera would
indicate that the same had been administered to the deceased in some
manner and no one except the husband could have administered the
poison. It was also argued that there was a strong motive for the
husband to commit the crime. The husband has also been held guilty
of causing lot of harassment to his wife and the same is evident from
the two letters written by the deceased to her father and are exhibited
in the evidence.
833
26.