JUDGMENT
Y. R. Tripathi, J.
1. Both these criminal appeals arise out of the common judgment dated 17-1-1992 and order dated 20-1-1992 passed by Sri Brijendra Singh, IInd Addl. Sessions Judge, Allahabad in Sessions Trial No. 505 of 1986, whereby he having held both the appellants guilty of the offence under Section 302, I.P.C. read with Section 34, I.P.C. has sentenced them to undergo Life Imprisonment. Appellant-Durga Prasad has further been held guilty of the offence under Section 201, I.P.C. and sentenced to three years Rigorous Imprisonment. Both the sentences of Durga Prasad have been directed to run concurrently.
2. Appellant-Smt. Garibi is the wife of the other appellant-Durga Prasad and admittedly they are in-laws of the deceased-Bindurani, who was married to their son Ghanshyam on 12-5-1981.
3. The prosecution case as unfolded in evidence before the trial Court is that on the morning of 12-2-1984 Durga Prasad along with his son had gone to a nearby Jungle to satisfy natural call, and when he was returning to his house therefrom he was informed by one Dujja, his neighbour, that his daughter-in-law had died of burning. Durga Prasad on reaching his house found that his daughter-in-law was lying dead from burns. He came to learn that Smt. Bindurani had gone to toilet situated inside the house with a burning earthen lamp from which she caught fire and got burnt. He also found a number of persons having assembled at his house. It is said that the appellant-Durga Prasad accompanied by Ram Singh and Pancham Lal (D.W. 1) went to P. S. Saini which lies at a distance 8-9 kms. to the west of his village and made over a written report there, on the basis of which an entry was made at Serial No. 10 of the G.D. at 7.30 a.m. by Constable Munni Lal P.W. 5 Sub-Inspector Prem Sagar Shukla who was then posted at Police Station. Saini on being entrusted with the investigation swung into action. He visited the scene of the incident where after appointing panches, he prepared inquest report and after sealing the dead body and completing other formalities in connection therewith, made over the dead body to P.W. 9 Ram Asrey Tiwari and one Maiku, village Chaukidar (not produced) for being taken to mortuary for its autopsy. P.W. 9 Constable Ram Asrey Tiwari in his turn took the dead body to mortuary at Moti Lal Nehru Medical College, Allahabad where on his identification of the dead body, Dr. U. S. Sinha P.W. 4, who was then posted as Professor in Forensic Medicine Department in Moti Lal Nehru Medical College, conducted the autopsy at 1.00 p.m. on 14-2-1984. According to Dr. Sinha, the deceased was an average built short statured female. He found blood coming out through both nostrils, eyes semi-opened and conjuntiva congested. He also noticed the tongue of the deceased protruding out and caught between teeth of upper and lower jaw. The tip of the tongue was burnt and teeth marking were present on it. He further found all scalp hair burnt. According to Dr. Sinha there was 80% burn on the dead body and only a small area in back and buttock were unburnt due to contact with ground. He also noticed that a part of the front lower chest, both thigh and arms were unburnt and the burn was deepest on lower part of abdomen below umblicus, groin and thigh and underlying muscles in the above portion were exposed. He found that the burn present all over the body was superficial. Some ashy dust were found present on the anterior surface of lower abdomen, groin and private part where the body was deeply burnt. On further examination he found the following ante-mortem injuries :–
(1) Abrasion situated on the left side of neck on the neck measuring 2 cm. x 1 cm. in diameter.
(2) Contusion on the left temporal region of skull measuring 5 cm. x 2 cm. in diameter underlying subcutaneous haemorrhage.
(3) Contusion on the fore head in an area of 4 cm. x 2 cm. situated 6 1/2 cm. above the root of nose with underlying haemorrhage. On internal examination of skull and brain Dr. Sinha found extra cranial haemorrhage and brain congested as well as mild congestion in respiratory track all over and congestion in both lungs. He noticed that the stomach and bladder were empty and both intestines were half full. In his opinion, the cause of death was the result of strangulation. The burn over the dead body, according to him, was post-mortem and the deceased had died two days back.
4. It appears that even after despatching the dead body for post-mortem examination P.W. 8 kept himself engaged in investigation of the case. He recorded the statements of the witnesses, took earthen lamp and some other articles into custody and prepared the recovery memos in respect thereof.
5. As it transpires, Avinash Chandra P.W. 1 the cousin brother of the deceased at the time of incident was employed in a Bank at Allahabad. He received information about the death of his cousin sister on 12-2-1984 and rushed to her in-laws place, where he found the dead body of the deceased being taken for post-mortem. He tried to make an F.I.R. at the Police Station on that very day, but it was not taken down. He thereupon came to Allahabad, got a written report typed out and on the next day made it over to S.P. (Rural Area). On the order of S.P. (R.A.) on the application of P.W. 1 Avinash Chandra, Munnu Lal Puri on 14-2-1984 registered a case vide G.D. No. 22 at 12.30 p.m. P.W, 1 Avinash Chandra in his application had made allegations about dowry demands having been made by the in-laws of the de ceased. He had also expressed his suspicion of foul play in unnatural death of his cousin sister. The Police of Police Station Saini after investigation found it a case of homicide and presented a charge-sheet, which culminated into trial resulting in conviction of the appellants and passing of the sentences as aforesaid, aggrieved from which the appellants have come up in these appeals.
6. We have heard Sri G. S. Chaturvedi, learned counsel for the appellants and the learned A.G.A. in extenso.
7. Learned counsel for the appellants has urged that there is dearth of evidence to connect the appellants with the crime and the learned trial Court has on superficial and untenable grounds reached its conclusion about the appellants being the authors of the crime. Taking through the prosecution evidence he has argued that the prosecution evidence centres round the proof of motive of the occurrence, which is too feeble to inspire any confidence. Before we advert to the prosecution evidence, we would like to point out certain facts, which are either admitted or well established from the materials on record.
8. The evidence of P.W. 4 Dr. U. C. Sinha is of much importance in this case. He had conducted autopsy on the dead body of the deceased at 1.00 p.m. on 24-2-1984 and had found the deceased to have died two days before. He has opined that the deceased could have died around 6 a.m. on 12-2-1984. The appellants too admit the death of the victim Smt. Bindurani, having taken place around 6 a.m. on 12-2-1984 Dr. Sinha at the time of autopsy had found the stomach and bladder of the deceased empty and has opined that the victim by the time of her death might have had satisfied her natural call. This also probabilises the time of death of the victim Smt. Bindurani around 6 a.m. on 12-2-1984. It is not disputed that the deceased had died in the house of her in-laws. The appellants in their statements have stated about the deceased having caught fire while going to toilet. The Investigating Officer P.W. 7 Prem Sagar Shukla had on reaching the spot found the dead body in the gallery of the toilet of the house of the appellants. The evidence of Dr. U. C. Sinha shows that he had found ante-mortem injuries on the dead body of the deceased. He has deposed that the death of the deceased had occurred due to those injuries. According to Dr. Sinha the burn injuries found on the dead body were superficial and postmortem. From the ante-mortem injuries as also from the state of body at the time of post-mortem examination, Dr. Sinha has stated that the death of the victim had occurred due to strangulation. The defence has failed to point out any inconsistency in the evidence of Dr. Sinha, which may belie his opinion on the point of cause of death of the victim.
9. Generally speaking it is the prosecution which in view of Section 101 of the Indian Evidence Act is saddled with the burden of proof, but in a situation like this in which, the incident took place inside the house of the appellants, where the presence of any outsider was not possible without the knowledge of the appellants, the prosecution cannot be expected to adduce direct evidence of the involvement of the culprits. Section 106 of the Indian Evidence Act takes care of such a situation and it casts the burden of proof of a feet, especially within the knowledge of a person on that person. Section 106 is exception to Section 101 of the Indian Evidence Act and is designed to meet the circumstances in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are especially in the knowledge of the accused persons. We are fully conscious that in such a case the Court is required to adopt a cautious approach and should record a conviction only if the facts established point out unfailingly to the guilt of the accused and every hypothesis of their innocence is capable of being negatived. The incident having taken place in the early hours at 12-2-1984 inside the house of the appellants and the deceased having found to have died unnatural death having several marks of violence on her body, it were certainly the appellants who were under an obligation to explain as to how the victim sustained the ante-mortem injuries which resulted in her death. The appellants, it would be found, have come out with an unbelievable story of cause of death of the deceased. The case of appellant-Durga Prasad as borne out from the information given by him at the Police Station as also from his statement under Secton 313, Cr. P.C. is that in the early hours of 12-2-1984, he along with his son had gone to Jungle to satisfy his natural call and while he was returning therefrom he learnt from Dujja his neighbour about his daughter-in-law having been burnt and on reaching his house he found his daughter-in-law having died of burns. According to him he thereafter went to the Police Station Saini and gave the written report of the accident. It is not digestible that when he had toilet in his house itself what was the occasion for him to have gone to Jungle to satisfy his natural call. Then the conduct of the other appellant-Smt. Garibi too is very suspicious. She in her statement under Section 313, Cr. P.C. is found to have stated that the deceased had gone to toilet with a burning earthen lamp, from which she caught fire and got burnt. The defence has also examined D.W. 1 to say that on hearing the cries of Smt. Garibi she had been attracted on the scene of occurrence and had found the deceased withering and calling her mother-in-law to save her. The medical evidence shows that the deceased had not died of burns, but had died as a result of ante-mortem injuries caused to her and the burns on her body were post-mortem. The fact that both the arms of the deceased were unburnt also belies the defence case of the deceased having died of burning as in that case she must have tried to extinguish the fire and would have sustained burn injuries on her arms. This being so, the appellants, who were under duty to explain as to how the deceased received ante-mortem injuries have not only tried to conceal the true facts, but are found to have tried to give the incident a colour of accident to screen themselves from their accountability to the incident which claimed the precious life of the victim, a young woman.
10. Presence of both the appellants at their house at the time of incident is either admitted or probabilised from the circum stances of the case. Appellant-Durga Prasad has no doubt stated about his having gone to Jungle at the probable time of the death of the deceased, but his statement on that point on the face of it appears to be untrue and he is also found to have given a wrong information at the Police Station apparently to misguide the investigation. The statement of the other appellant-Smt. Garibi who is the wife of appellant-Durga Prasad about the cause of death of the deceased also stands belied by the medical evidence. Both the appellants are thus found to have come up with a cooked up version of the incident simply with a view to suppress the truth as also to escape their accountability of the cause of death of the victim.
11. Learned counsel for the appellants has highlightened the insufficiency of, and descripancy in, the prosecution evidence argued that the prosecution has miserably failed to bring home the guilt against the appellants. We have already seen above that of the facts established and proved in this case, unerringly go to show that the deceased had died some time in the early hours of 12-2-1984 inside the house of the appellants where no outsider could have been present. We have also seen that the deceased did not die of burns as is the case of defence, but died of ante-mortem injuries found by P.W. 4 Dr. U. C. Sinha on the dead body at the time of autopsy. This being the position, in view of the law laid down by Hon’ble Supreme Court in the case of Sucha Singh v. State of Punjab, 2001 All Cri C 908 : (AIR 2001 SC 1436) the burden was squarely on the appellants to prove as to how the ante-mortem injuries of the victim were caused as this fact would have exclusively been in the knowledge of the appellants. Section 106 of the Indian Evidence Act, was fully attracted in this case, but the appellants not only failed to discharge their burden, but come out with a concocted defence version, which is suggestive of their involvement and complicity in the crime. True it is that the evidence led by the prosecution in this case is on the point of motive alone and that too suffers from some descripancies, but it hardly helps the defence. The evidence on the point of demand of dowry in this case has been led by the I prosecution simply to supply motive to the appellants, which is not of much significance because motive is the state of mind of a criminal, at the time of commission of the offence and it is very difficult to judge it. When the cause of death was exclusively within the knowledge of the appellants, they cannot be allowed to get away of their obligation to prove it by taking the advantage of the weakness of the prosecution evidence.
12. We have already examined the evidence and circumstances of the case and find that the circumstances established in this case rule out all the hypothesis of innocence of the appellants and they to our mind have rightly been held guilty of various charges and convicted of the same.
13. In view of what has been said above, both the appeals are found devoid of any merits and are liable to be dismissed.
14. We accordingly dismiss both the appeals and confirm the conviction and sentences of the appellants.
15. The C.J.M. Allahabad shall cause the appellants arrested and send to jail to serve out the sentences passed against them. He shall also submit compliance report at the earliest.