{"id":140913,"date":"2006-11-07T00:00:00","date_gmt":"2006-11-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-rajasthan-vs-kashi-ram-on-7-november-2006-2"},"modified":"2016-09-05T06:48:31","modified_gmt":"2016-09-05T01:18:31","slug":"state-of-rajasthan-vs-kashi-ram-on-7-november-2006-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-rajasthan-vs-kashi-ram-on-7-november-2006-2","title":{"rendered":"State Of Rajasthan vs Kashi Ram on 7 November, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Rajasthan vs Kashi Ram on 7 November, 2006<\/div>\n
Author: B.P. Singh<\/div>\n
Bench: B.P. Singh, Tarun Chatterjee<\/div>\n
           CASE NO.:\nAppeal (crl.)  745 of 2000\n\nPETITIONER:\nState of Rajasthan\n\nRESPONDENT:\nKashi Ram\n\nDATE OF JUDGMENT: 07\/11\/2006\n\nBENCH:\nB.P. Singh  & Tarun Chatterjee\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
B.P. Singh, J<\/p>\n
\tThis appeal by special leave has been preferred by the State of
\nRajasthan against the common judgment and order of the High Court
\nof Judicature for Rajasthan at Jodhpur in D.B. Criminal Appeal
\nNo.622 of 1999, D.B. Jail Appeal No.619 of 1999 and D.B. Criminal
\nMurder Reference No.2 of 1999 whereby the High Court by its
\nimpugned judgment and order dated December 21, 1999 allowed the
\nappeals preferred by the respondent and declined the murder reference
\nmade by the learned Additional Sessions Judge for confirmation of the
\nsentence of death.  We notice that both the criminal appeals were
\npreferred by the respondent herein, one from jail and the other
\npresented through an advocate.  The judgment and order of the
\nSpecial Additional District and Sessions Judge (Women Atrocities),
\nSri Ganganagar in Sessions Trial No.39 of 1998 dated September 29,
\n1999 sentencing the petitioner to death under Section 302 I.P.C. was
\nset aside.\n<\/p>\n
\tThe respondent herein Kashi Ram was married to Kalawati
\n(deceased) about seven years before the occurrence.  They were
\nblessed with two children, Suman (deceased) and Guddi (deceased)
\naged two and half years and two and half months respectively.  It
\nappears from the record that the relationship between them was not
\ncordial and there were incidents of the respondent assaulting Kalawati
\nand treating her with cruelty.  A Panchayat had also been convened at
\nthe house of the father of the respondent, however, the respondent’s
\nfather pleaded helplessness since the appellant did not pay any heed to
\nhis advice.  The result was that Kalawati stayed with her parents for
\nabout two years.  Later Harchand, father of the respondent assured her
\nparents that Kashi Ram had improved in his behaviour and, therefore,
\nKalawati should be sent to her matrimonial home.  On being
\nconvinced, Kalawati was sent to her matrimonial home.\n<\/p>\n
The case of the prosecution is that after some time Kashi Ram
\nagain started mis-behaving in the same old manner and used to beat
\nhis wife Kalawati off and on.\n<\/p>\n
The case of the prosecution is that the respondent killed his
\nwife and two daughters on the night intervening 3rd and 4th February,
\n1998 and thereafter disappeared.  The first information regarding the
\nincident was given by Inder Bhan, PW-6, a cousin of the father of
\nKalawati (deceased).  On the basis of information given by him, a
\nformal first information report was drawn up and a case registered
\nagainst the respondent under Section 302 IPC.  The first information
\nwas recorded at 10.15 a.m. on February 6, 1998 in which the
\ninformant stated as follows:-\n<\/p>\n
The respondent was married to Kalawati (deceased) about
\nseven years before the occurrence.  Kalawati used to come to her
\nparents off and on in the first six months after marriage but it appears
\nthat there were frequent quarrels between Kalawati and her husband
\n(respondent herein) who used to complain that she had brought a
\ncamel instead of a buffalo at the time of marriage.  He also
\ncomplained that she was dark complexioned.  Things came to such a
\nstage that Kalawati had to return to her parents.  On the very next day,
\nthe informant along with the father of the deceased and others went to
\nthe father of the respondent namely – Harchand and complained to
\nhim about the behaviour of his son.   Harchand pleaded helplessness
\nin the matter and advised them to do whatever they liked, since his
\nson was not under his control.  In these circumstances, Kalawati
\ncontinued to stay with her parents for about one and half or two years.
\nOne day, Harchand, father of the respondent came to the house of the
\nfather of Kalawati and assured him that his son Kashi Ram
\n(respondent herein) had improved in his behaviour and assured him
\nthat she will be cared for in her matrimonial home.  The father of the
\ndeceased and other relatives after getting assurance from the brothers
\nof Harchand decided to send her back to her matrimonial home.  The
\nrespondent along with his father Harchand came and the deceased
\naccompanied them to her matrimonial home.  The respondent and his
\nwife Kalawati (deceased) were blessed with two daughters who were
\ntwo and half years and two and half months old at the time of
\noccurrence.  The respondent and Kalawati (deceased) resided with the
\nrespondent’s parents for some time but about two months before the
\noccurrence the respondent shifted to a rented premises in Prem Nagar.
\nMilk used to be sent to Kalawati’s house from her father’s
\nhouse, and her brother Mamraj, PW-2, used to supply milk everyday.
\nOn February 3, 1998 as usual Mamraj, PW-2 had gone to supply milk.
\nHis sister Kalawati told him not to bring milk in future.  On the next
\nday, that is on February 4, 1998 Mamraj PW-2 noticed that the
\nentrance of the house of the respondent was locked.  On enquiry, he
\nwas told by a neighbour Gurdayal Singh that he had seen the
\nrespondent and his family members till last evening but he did not
\nknow where they had gone thereafter.\n<\/p>\n
In the evening at about 5.30 p.m. the mother of Kalawati (PW-\n<\/p>\n
5) came to the informant and told him that she suspected something,
\nand therefore, requested him to find out the whereabouts of the
\nrespondent and his family members.  The informant went on a motor-
\ncycle along with one Sheo Narayan (PW-1) to search for the
\nrespondent and his family members.  On the way, he met Kashmiri
\nLal and another son of Harchand on the bridge.  On enquiry they told
\nhim that the respondent along with his family members may have
\ngone to the Suratgarh fair and that they were also waiting for them.  In
\nthe meantime, Harchand father of the respondent also came.  The
\ninformant asked them to come to the house of the respondent rather
\nthan wait on the bridge.  Accordingly, they all proceeded towards the
\nhouse of the respondent on their respective vehicles, but as soon as
\nthey came near Prem Nagar, the two brothers of accused disappeared
\nfrom his sight.  At about 7.30 p.m. the informant came to the house of
\nthe respondent and found the main entrance locked.  The doors were
\ngot opened and inside the house they found the dead body of Kalawati
\nlying on a cot and dead bodies of the two children lying on another
\ncot.  It was, therefore, alleged by the informant that the respondent
\nhad committed the murder of his wife and two daughters and had
\nthereafter disappeared.\n<\/p>\n
Dr. Prem Arora, PW-10 conducted the post mortem
\nexamination of the dead bodies of Kalawati and her two children.  On
\nKalawati he found the following injuries:-\n<\/p>\n
“Mark of ligature present on neck 2cm in width and
\nknot present on back of neck, ligature mark is situated
\njust below the thyroid certilage and encircling neck
\ncompletely.  Base of mark is pale, dry and hard.  One
\ncut section tissue below ligature mark is dry and
\nwhite.  No external injury present anywhere in body”.\n<\/p>\n
Death in his opinion was caused by asphyxia.  In his opinion,
\ndeath of the two children was also caused by asphyxia.  In his opinion,
\ndeaths had occurred 48 to 72 hrs. before the post-mortem examination
\nwhich was conducted on February 7, 1998.\n<\/p>\n
At the trial several witnesses were examined to prove the case
\nof the prosecution.  PW-1, Sheo Narayan, is the person with whom
\nPW-6 Inder Bhan had gone to search for the respondent and his family
\nmembers on the request of the mother of the deceased namely – PW-5,
\nJai Kauri.  He fully supported the case of the prosecution to the effect
\nthat he had gone with the father of the respondent and Inder Bhan,
\nPW-5 to the house of the respondent in the evening of February 6,
\n1998 and after opening the main gate and removing the door from the
\nentrance of the house they entered the house and found the dead
\nbodies lying on two cots inside the house.\n<\/p>\n
PW-5, Jai Kauri, mother of the deceased has also deposed to the
\neffect that her daughter was treated with cruelty by the respondent.
\nShe has narrated the incidents which took place before deceased
\nKalawati was sent back with her husband to her matrimonial home.
\nShe has deposed that milk used to be delivered by her son Mamraj,
\nPW-2 at the house of the respondent and on February 3, 1998 when
\nMamraj had gone to deliver milk Kalawati had asked him not to bring
\nmilk thereafter since milk was to be supplied by her husband’s elder
\nbrother.  She claimed that she had gone to the house of the deceased
\non Thursday, i.e. on February 5, 1998, but finding the doors locked
\nshe had returned.  She had made enquiries from the neighbourers, who
\ntold her that they had seen them on Tuesday (February 3, 1998)
\nevening but not thereafter.  She had again gone to her daughter’s
\nhouse on Friday and it was again found locked.  She grew suspicion
\nand, therefore, requested Inder Bhan, PW-6 and Sheo Narayan, PW-1
\nto search for them.\n<\/p>\n
PW-2, Mamraj, a brother of deceased Kalawati has also
\nnarrated the incidents relating to the cruel treatment meted out to
\nKalawati by her husband.  According to this witness, he used to
\ndeliver milk at the house of the respondent, since the brother of Kashi
\nRam, who used to supply milk to them, was ill. On February 3, 1998
\nwhen he had gone to supply milk he was told by the respondent and
\nhis sister Kalawati (deceased) to stop further supply of milk.  On
\nFebruary 4, 1998 while returning home he had found the house of
\nKalawati (deceased) locked.  On the next day, when his mother PW-5,
\nwent to the house of Kalawati, she also found the house locked.  The
\nneighbourers had informed them that Kalawati and Kashi Ram were
\nlast seen on Tuesday evening (3.2.1998).  When his mother again
\nwent to the house of Kalawati on February 6, 1998 she found the
\nhouse locked and, therefore, she had requested Inder Bhan and Sheo
\nNarayan to search for them.  This witness has been cross-examined at
\nlength but nothing has been elicited in his cross-examination which
\nmay discredit him.  The assertion of this witness that he has been told
\nby deceased Kalawati and her husband (respondent herein) on
\nFebraury 3, 1998 to stop supply of milk, went unchallenged in his
\ncross-examination.  Only with a view to assure ourselves that this
\nwitness had also said so in his statement recorded under Section 161
\nCrl.P.C.  we read his police statement and we find that he had said so
\neven in the course of investigation.  We have looked into the case
\ndiary not as substantive evidence but only to verify whether PW-2 had
\nomitted to say so in the course of investigation.  The substantive
\nevidence of PW-2 that he had seen his sister and the respondent on
\nFebruary 3, 1998, has gone unchallenged.\n<\/p>\n
The prosecution examined two witnesses Dinesh Kumar, PW-3
\nand Om Prakash, PW-4 to prove that the respondent had made an
\nextra-judicial confession before these two witnesses on February 17,
\n1998.  The prosecution also relied on the evidence of recovery made
\nat the instance of the respondent pursuant to which a waist chord and
\nkeys of the locks put on the two doors were recovered from the
\npossession of the respondent on February 18, 1998.  The prosecution
\nalso examined several other witnesses to prove its case.\n<\/p>\n
The trial court on an exhaustive consideration of the evidence
\non record came to the conclusion that the prosecution had successfully
\nestablished that the deceased Kalawati was last seen alive in her house
\non February 3, 1998 and that Mamraj, PW-2 had seen her as well as
\nher husband in their rented premises.  It also held that the prosecution
\nhad proved that the two doors of the house were found locked on the
\nmorning of February 4, 1998 and that the concerned prosecution
\nwitnesses entered the house after removing the door on February 6,
\n1998.  The house was also found locked on February 4, 1998 when
\nthe mother of deceased Kalawati had gone to her house.  The trial
\ncourt relied on the recoveries made of the weapon of offence namely –
\nthe waist chord, and the keys of the two locks, from possession of the
\nrespondent pursuant to his statement recorded under Section 27 of the
\nEvidence Act.  Reliance was also placed by the trial court on the
\nextra-judicial confession said to have been made by the respondent
\nbefore PWs 3 and 4.  The trial court also found that the house was
\nfound locked on February 4, 1998, and till he was arrested on
\nFebruary 17, 1998, the whereabouts of the respondent were not
\nknown.  Even after his arrest he did not offer any explanation and
\neven at the trial only denied the allegations made against him without
\noffering any explanation for his absence during the crucial days.
\nRelying on these circumstances, and finding that the deaths were
\nhomicidal as proved by the medical evidence on record, the trial court
\ncame to the conclusion that the only inference that could be drawn
\nfrom the proved facts and circumstances was that the respondent after
\ncommitting the murder of his wife and his two daughters locked the
\nhouse and disappeared from the scene.  He was arrested two weeks
\nlater but failed to give any explanation in defence.  Accordingly, the
\ntrial court finding the respondent guilty of the offence punishable
\nunder Section 302 IPC sentenced him to death having regard to the
\nheinous nature of the crime committed by him in which three innocent
\nlives were lost including two infants.\n<\/p>\n
On appeal, the High Court reversed the findings of fact
\nrecorded by the trial court and acquitted the respondent.  Before
\nadverting to the other incriminating circumstances we may at the
\nthreshold notice two of them namely – the circumstance that the
\nrespondent made an extra-judicial confession before PWs 3 and 4, and
\nthe circumstance that recoveries were made pursuant to his statement
\nmade in the course of investigation of the waist chord used for
\nstrangulating Kalawati (deceased) and the keys of the locks which
\nwere put on the two doors of his house.  The High Court has
\ndisbelieved the evidence led by the prosecution to prove these
\ncircumstances and we find ourselves in agreement with the High
\nCourt.  There was really no reason for the respondent to make a
\nconfessional statement before PWs 3 and 4.  There was nothing to
\nshow that he had reasons to confide in them. The evidence appeared
\nto be unnatural and unbelievable.  The High Court observed that
\nevidence of extra-judicial confession is a weak piece of evidence and
\nthough it is possible to base a conviction on the basis of an extra-
\njudicial confession, the confessional evidence must be proved like any
\nother fact and the value thereof depended upon the veracity of the
\nwitnesses to whom it was made.  The High Court found that PW-3
\nDinesh Kumar was known to Mamraj, the brother of deceased
\nKalawati.  PW-3 was neither a Sarpanch nor a ward member and,
\ntherefore, there was no reason for the respondent to repose faith in
\nhim to seek his protection.  Similarly, PW-4 admitted that he was not
\neven acquainted with the accused.  Having regard to these facts and
\ncircumstances, we agree with the High Court that the case of the
\nprosecution that the respondent had made an extra-judicial confession
\nbefore PWs-3 and 4 must be rejected.\n<\/p>\n
So far as the recoveries are concerned, the High Court has not
\naccepted the same since PW-6, Inder Bhan admitted in the course of
\nhis cross-examination that the waist chord which had been used for
\nstrangulating Kalawati was recovered much earlier from the scene of
\noffence by the police itself.  Moreover, the waist chord as well as the
\nkeys were not even produced before the Court.  It may be that some
\nother witnesses have stated that the waist chord was not recovered
\nfrom the spot, but in the facts of the case the benefit of doubt must go
\nto the accused.\n<\/p>\n
The most important circumstance that the respondent was last
\nseen with the deceased on February 3, 1998 whereafter he had
\ndisappeared and his house was found locked and that he had offered
\nno explanation whatsoever, was disposed of by the High Court in one
\nshort paragraph observing that there was nothing unusual if the
\naccused was seen in the company of his own family members in his
\nhouse. On such reasoning, the High Court held that the circumstantial
\nevidence relied upon by the prosecution was not strong enough to
\nsustain the conviction of the respondent.  Accordingly, the High Court
\nallowed the appeals preferred by the respondent and declined the
\ndeath reference made by the trial court for confirmation of the
\nsentence of death.\n<\/p>\n
We have been taken through the entire evidence on record.  The
\nmedical evidence on record clearly proves that the death of Kalawati
\nand her two minor daughters was homicidal caused by strangulation.
\nThe cause of death was asphyxia.  It is also established on record that
\nthe deceased was last seen alive in the company of respondent on
\nFebruary 3, 1998 at her house.  The prosecution has also successfully
\nestablished the fact that the house was found locked on the morning of
\nFebruary 4, 1998 and continued to remain locked till it was opened
\nafter removing the door on February 6, 1998.  Throughout this period
\nthe respondent was not to be seen and he was arrested only on
\nFebruary 17, 1998.  Neither at the time of his arrest, nor in the course
\nof investigation, nor before the Court, has the respondent given any
\nexplanation in defence.  He has not even furnished any explanation as
\nto where he was between February 4, 1998 and February 17, 1998.  It
\nhas been argued on behalf of the prosecution that this most important
\ncircumstance has been completely ignored by the High Court. The
\ncase of the prosecution substantially rested on this circumstance. The
\nrespondent was obliged to furnish some explanation in defence.  He
\ncould have explained where he was during this period, or he could
\nhave furnished any other explanation to prove his innocence.  Counsel
\nfor the respondent on the other hand, contends that though the
\nrespondent furnished no explanation whatsoever, there is evidence on
\nrecord to prove that he had gone to attend Suratgarh fair with his
\nfamily members.  A question, therefore, arises whether the
\npresumption under Section 106 of the Evidence Act may be drawn
\nagainst the respondent in the facts of the case, since the facts as to
\nwhere he was during the relevant period and when he parted company
\nwith the deceased, were matters within his special knowledge the
\nburden of proving which was cast upon him by law.\n<\/p>\n
Learned counsel for the State strenuously urged before us that
\nthe High Court committed an apparent error in ignoring the evidence
\non record which disclosed that the respondent was last seen with
\ndeceased Kalawati in his house on February 3, 1998 late in the
\nafternoon.  Thereafter, he was not seen by anyone and his house was
\nfound locked in the morning.  The evidence of PW-5, mother of the
\ndeceased Kalawati, and her brother Manraj, PW-2, clearly prove the
\nfact that the house was found locked on February 4, 1998.  The
\nevidence also establishes beyond doubt that the doors were removed
\nand dead bodies of the deceased Kalawati and her daughters were
\nfound inside the house on February 6, 1998.  In these circumstances,
\nthe disappearance of the respondent was rather suspicious because if
\nat all only he could explain what happened thereafter.  He, therefore,
\nsubmitted that in the facts of the case, in the absence of any
\nexplanation offered by the respondent, an inference must be drawn
\nagainst the respondent which itself is a serious incriminating
\ncircumstance against him.  He has supported his argument relying
\nupon several decisions of this Court.\n<\/p>\n
Before adverting to the decisions relied upon by the counsel for
\nthe State, we may observe that whether an inference ought to be
\ndrawn under Section 106 IPC is a question which must be determined
\nby reference to proved.  It is ultimately a matter of appreciation of
\nevidence and, therefore, each case must rest on its own facts.\n<\/p>\n
In Joseph s\/o Kooveli Poulo Vs. State of Kerala (2000) 5 SCC
\n197; the facts were that the deceased was an employee of a school.
\nThe appellant representing himself to be the husband of one of the
\nsisters of Gracy, the deceased, went to the St. Mary’s Convent where
\nshe was employed and on a false pretext that her mother was ill and
\nhad been admitted to a hospital took her away with the permission of
\nthe Sister in charge of the Convent, PW-5.  The case of the
\nprosecution was that later the appellant not only raped her and robbed
\nher of her ornaments, but also laid her on the rail track to be run over
\nby a passing train.  It was also found as a fact that the deceased was
\nlast seen alive only in his company, and that on information furnished
\nby the appellant in the course of investigation, the jewels of the
\ndeceased, which were sold to PW-11 by the appellant, were seized.
\nThere was clear evidence to prove that those jewels were worn by the
\ndeceased at the time when she left the Convent with the appellant.
\nWhen questioned under Section 313 Cr.P.C., the appellant did not
\neven attempt to explain or clarify the incriminating circumstances
\ninculpating and connecting him with the crime by his adamant attitude
\nof total denial of everything.  In the background of such facts, the
\nCourt held:-\n<\/p>\n
“Such incriminating links of facts could, if at all, have
\nbeen only explained by the appellant, and by nobody
\nelse, they being personally and exclusively within his
\nknowledge.  Of late, courts have, from the falsity of
\nthe defence plea and false answers given to court,
\nwhen questioned, found the missing links to be
\nsupplied by such answers for completing the chain of
\nincriminating circumstances necessary to connect the
\nperson concerned with the crime committed (see State
\nof Maharashtra Vs. Suresh, (2000) 1 SCC 471).  That
\nmissing link to connect the accused  appellant, we
\nfind in this case provided by the blunt and outright
\ndenial of every one and all the incriminating
\ncircumstances pointed out which, in our view, with
\nsufficient and reasonable certainty on the facts
\nproved, connect the accused with the death and the
\ncause for the death of Gracy”.\n<\/p>\n
In Ram  Gulam Chaudhary and Ors. Vs. State of Bihar (2001)
\n8 SCC 311; the facts proved at the trial were that the deceased boy
\nwas brutally assaulted by the appellants.  When one of them declared
\nthat the boy was still alive and he should be killed, a chhura blow was
\ninflicted on his chest. Thereafter, the appellants carried away the boy
\nwho was not seen alive thereafter.  The appellants gave no explanation
\nas to what they did after they took away the boy.  The question arose
\nwhether in such facts Section 106 of the Evidence Act applied.  This
\nCourt held:\n<\/p>\n
“In the absence of an explanation, and considering the
\nfact that the appellants were suspecting the boy to
\nhave kidnapped and killed the child of the family of
\nthe appellants, it was for the appellants to have
\nexplained what they did with him after they took him
\naway.  When the abductors withheld that information
\nfrom the court, there is every justification for drawing
\nthe inference that they had murdered the boy.  Even
\nthough Section 106 of the Evidence Act may not be
\nintended to relieve the prosecution of its burden to
\nprove the guilt of the accused beyond reasonable
\ndoubt, but the section would apply to cases like the
\npresent, where the prosecution has succeeded in
\nproving facts from which a reasonable inference can
\nbe drawn regarding death.  The appellants by virtue of
\ntheir special knowledge must offer an explanation
\nwhich might lead the Court to draw a different
\ninference”.\n<\/p>\n
In Sahadevan alias Sagadevan Vs. State represented by
\nInspector of Police, Chennai (2003) Vol. 1 SCC 534, the prosecution
\nestablished the fact that the deceased was seen in the company of the
\nappellants from the morning of March 5, 1985 till at least 5 p.m. on
\nthat day when he was brought to his house, and thereafter his dead
\nbody was found in the morning of March 6, 1985.   In the background
\nof such facts the Court observed:\n<\/p>\n
“Therefore, it has become obligatory on the
\nappellants to satisfy the court as to how, where and
\nin what manner Vadivelu parted company with
\nthem.  This is on the principle that a person who is
\nlast found in the company of another, if later found
\nmissing, then the person with whom he was last
\nfound has to explain the circumstances in which
\nthey parted company.  In the instant case the
\nappellants have failed to discharge this onus.  In
\ntheir statement under Section 313 CrPC they have
\nnot taken any specific stand whatsoever”.\n<\/p>\n
    It is not necessary to multiply with authorities.  The principle
\nis well settled.  The provisions of Section 106 of the Evidence Act
\nitself are unambiguous and categoric in laying down that when any
\nfact is especially within the knowledge of a person, the burden of
\nproving that fact is upon him.  Thus, if a person is last seen with the
\ndeceased, he must offer an explanation as to how and when he parted
\ncompany.  He must furnish an explanation which appears to the Court
\nto be probable and satisfactory. If he does so he must be held to have
\ndischarged his burden.  If he fails to offer an explanation on the basis
\nof facts within his special knowledge, he fails to discharge the burden
\ncast upon him by Section 106 of the Evidence Act.  In a case resting
\non circumstantial evidence if the accused fails to offer a reasonable
\nexplanation in discharge of the burden placed on him, that itself
\nprovides an additional link in the chain of circumstances proved
\nagainst him.  Section 106 does not shift the burden of proof in a
\ncriminal trial, which is always upon the prosecution.  It lays down the
\nrule that when the accused does not throw any light upon facts which
\nare specially within his knowledge and which could not support any
\ntheory or hypothesis compatiable with his innocence, the Court can
\nconsider his failure to adduce any explanation, as an additional link
\nwhich completes the chain.  The principle has been succinctly stated
\nin Re. Naina Mohd. AIR 1960 Madras, 218.\n<\/p>\n
There is considerable force in the argument of counsel for the
\nState that in the facts of this case as well it should be held that the
\nrespondent having been seen last with the deceased, the burden was
\nupon him to prove what happened thereafter, since those facts were
\nwithin his special knowledge. Since, the respondent failed to do so, it
\nmust be held that he failed to discharge the burden cast upon him by
\nSection 106 of the Evidence Act.  This circumstance, therefore,
\nprovides the missing link in the chain of circumstances which prove
\nhis guilt beyond reasonable doubt.\n<\/p>\n
Counsel for the respondent submitted that no reliance can be
\nplaced on the evidence of Mamraj, PW-2, the brother of the deceased,
\nwho stated that when he had gone to the house of the deceased on
\nFebruary 3, 1998 he had seen his sister as well as the respondent in
\nthe house and he was asked not to bring milk thereafter since
\nalternative arrangement had been made.  This statement of Mamraj,
\nPW-2 was not even challenged in his cross-examination.  Even in the
\ncourse of investigation Mamraj, PW-2 had made a statement to the
\nsame effect.  It cannot therefore, be said that he had introduced this
\nfact for the first time at the trial.  Learned counsel submitted that the
\naforesaid statement of PW-2 was not specifically put to the accused
\nwhen he was examined under Section 313 Cr.P.C.. That may be so,
\nbut in the facts of the case, we find that by such omission no prejudice
\nhas been caused to the appellant.  Mamraj, PW-2 had deposed in his
\npresence and was exhaustively cross-examined by counsel appearing
\nfor him.  The statement of Mamraj, PW-2 regarding his having seen
\nthe deceased last in the company of the respondent was not even
\nchallenged in his cross-examination.  Moreover, from the trend of the
\nanswers given by the respondent in his examination under Section 313
\nCr.P.C., it appears that the respondent made only a bald denial of all
\nthe incriminating circumstances put to him, and had no explanation to
\noffer.\n<\/p>\n
It was then submitted on behalf of the respondent that the
\nneighbourers who had stated that they had seen the respondent and
\ndeceased Kalawati on the evening of February 3, 1998 were not
\nexamined by the prosecution.  In view of the evidence of PW-2,
\nMamraj who proved this fact, the non-examination of those witnesses
\ndoes not have any adverse effect on the case of the prosecution.  It
\nwas also submitted that there is no evidence to show that the
\nrespondent No.1 was absconding after the occurrence.  From the facts
\nproved on record it is established that on February 4, 1998 the house
\nwas found locked.  The same was the position on February 5, 1998.
\nwhen PW-5, Jai Kauri, mother of deceased Kalawati visited the house
\nof her daughter and found the house locked.  Finding the house also
\nlocked on February 6, 1998, she became anxious to know about the
\nwelfare of her daughter and, therefore, she went to the informant, PW-
\n6 and requested him to find out the whereabouts of her daughter
\nKalawati and members of her family.  These facts clearly prove that
\nwhile the doors of the house of the respondent were locked, he was
\nnowhere on the scene.  The fact that PWs-1 and 6 went in search of
\nthe respondent and the deceased and their children, and were informed
\nby the respondent’s brother that he may have gone to Suratgarh fair,
\nalso points in the same direction.  Obviously, therefore he was
\nabsconding after commission of the offence.  In fact, he never
\nappeared on the scene till his arrest on February 17, 1998.  There is,
\ntherefore, abundant evidence to prove that the respondent was
\ntraceless between February 4, 1998 and February 17, 1998.  Reliance
\nplaced by counsel on the decision of this Court in P.  Mani Vs.  State
\nof Tamil Nadu (2006) 3 SCC 161, is of no avail in the facts and
\ncircumstances of this case.\n<\/p>\n
It was lastly submitted that in his examination under Section
\n313 Cr.P.C. though the circumstance regarding his having been seen
\non the evening by his neighbourers on February 3, 1998 was put to the
\nrespondent accused, the name of PW-2 was not mentioned as a person
\nwho had also seen him on that day with the deceased.  The fact
\nremains that the incriminating circumstance was put to the accused
\nand his response was a bald denial.  We do not find that any prejudice
\nwas caused to the respondent by not mentioning the name of PW-2,
\nwhen the incriminating circumstance appearing against him was put to
\nhim.\n<\/p>\n
In the facts and circumstances of the case, we are satisfied that
\nthis appeal ought to be allowed.   The High Court completely brushed
\naside the most incriminating circumstance which was proved by the
\nprosecution namely – that the respondent was last seen with his wife
\non  February 3, 1998 whereafter the house was found locked and the
\nrespondent was not to be seen anywhere.  He continued to be traceless
\ntill February 17, 1998 when he was arrested.  The respondent did not
\noffer any explanation in defence and his response to all the
\nincriminating circumstances put to him in his examination under
\nSection 313 Cr.P.C. was a bald denial.\n<\/p>\n
The following incriminating circumstances are clearly
\nestablished against the respondent :\n<\/p>\n
a)  That he was not on cordial terms with his wife Kalawati.\n<\/p>\n
b)  On the evening of February 3, 1998 he was seen in his house
\nwith his wife Kalawati (deceased).\n<\/p>\n
c)  The house of the respondent was found locked on the 4th, 5th
\nand 6th February, 1998.\n<\/p>\n
d)  On February 6, 1998 when his house was opened the dead
\nbodies of his wife and daughters were found, and the medical
\nevidence established that they had been strangulated to death, the
\ncause of death being asphyxia.\n<\/p>\n
e) Since the respondent was not traceable the mother of the
\ndeceased PW-5, Jai Kauri became anxious to know about their
\nwhereabouts and requested PWs-1 and 6 to search for them.\n<\/p>\n
f)  In the course of investigation the respondent never appeared
\nat any stage, and for the first time he appeared on the scene when he
\nwas arrested on February 17, 1998.\n<\/p>\n
g)  Even after his arrest he did not offer any explanation as to
\nwhen he parted company with his wife nor did he offer any
\nexculpatory explanation to discharge the burden under Section 106 of
\nthe Evidence Act.\n<\/p>\n
These incriminating circumstances in our view form a complete
\nchain and are consistent with no other hypothesis except the guilt of
\nthe accused respondent.  If he was with his wife on the evening of
\nFebruary 3, 1998, he should have explained how and when he parted
\ncompany and\/or offered some plausible explanation exculpating him.
\nThe respondent has not pleaded alibi, nor has he given an explanation
\nwhich may support his innocence.\n<\/p>\n
We are aware of the fact that we are dealing with an appeal
\nagainst acquittal, but having appreciated the evidence on record we
\nhave come to the conclusion that the High Court has completely given
\na go bye to the most important incriminating circumstance which
\nappeared against the accused respondent.  In the facts and
\ncircumstances of the case the most incriminating circumstance about
\nthe respondent being seen with his wife on February 3, 1998 and
\ndisappearing thereafter, and his failure to offer any explanation when
\narrested, has been completely ignored by the High Court by simply
\nrecording the finding that there was nothing unusual in the husband
\nbeing found with the wife in his house.  The High Court failed to
\nappreciate the other co-related circumstances namely – his
\ndisappearance thereafter locking of the house, and his failure to offer a
\nsatisfactory explanation in defence.  Thus, the High Court has ignored
\nimportant clinching evidence which proved the case of the
\nprosecution.  Therefore, interference with the judgment of the High
\nCourt is warranted.\n<\/p>\n
In the result, we allow this appeal and set aside the impugned
\njudgment and order of the High Court. On the question of sentence,
\nhaving regard to the fact that the offence took place in February 1998
\nand the respondent was acquitted by the High Court, we sentence him
\nto imprisonment for life.  The respondent may have been released
\npursuant to order of this Court dated 1.9.2000 issuing bailable warrant
\nof arrest.  His bail bonds are cancelled and he is directed to be taken
\ninto custody forthwith to serve out his sentence.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Rajasthan vs Kashi Ram on 7 November, 2006 Author: B.P. Singh Bench: B.P. Singh, Tarun Chatterjee CASE NO.: Appeal (crl.) 745 of 2000 PETITIONER: State of Rajasthan RESPONDENT: Kashi Ram DATE OF JUDGMENT: 07\/11\/2006 BENCH: B.P. Singh & Tarun Chatterjee JUDGMENT: J U D G M E N T […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-140913","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Rajasthan vs Kashi Ram on 7 November, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-rajasthan-vs-kashi-ram-on-7-november-2006-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Rajasthan vs Kashi Ram on 7 November, 2006 - 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