BALBIR SINGH vs. STATE

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on : February 10, 2010
Judgment Delivered on : March 11, 2010

+ CRL.APPEAL NO.922/2004

BALBIR SINGH ..... Appellant
Through: Mr.K.K.Sud, Senior Advocate with
Mr.Mukesh Kalia, Advocate and
Ms.Sumita Kapil, Advocate.
versus

STATE ..... Respondent
Through: Mr.M.N.Dudeja, A.P.P.

+ CRL.APPEAL NO.904/2004

KAMLA DEVI ..... Appellant
Through: Mr.Mukesh Kalia, Advocate and
Ms.Sumita Kapil, Advocate.
versus

STATE ..... Respondent
Through: Mr.M.N.Dudeja, A.P.P.

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON’BLE MR. JUSTICE SURESH KAIT


1. Whether the Reporters of local papers may be
allowed to see the judgment?

2. To be referred to the Reporter or not? Yes


3. Whether the judgment should be reported in the
Digest? Yes

PRADEEP NANDRAJOG, J.
1. Wrought with discrimination and prejudiced by rituals,
Indian society has dealt the girl child a rough hand starting
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even before her birth and ending with the dusk of her life.
Amidst uproar of gender equality and law enforcement, female
infants are found dumped in the trash, by the dozens, and
unborn female foetuses continue to be sniffed in the womb.
The present case highlights the unfortunate plight of the girl
child where the parents and siblings of the deceased girl,
betrayed the love and trust reposed by the deceased in them
by helping her wrongdoers to go scot free.
2. Process of criminal law was set into motion when at
around 3.00 P.M. on 31.01.2002 Const.Pappu Singh PW-5,
recorded an entry in the daily diary Ex.PW-5 noting therein
that one Trilok Singh PW-2, came to Police Station Tilak Nagar
and informed that his sister Pinki Kaur (hereinafter referred to
as the “deceased”) has died at her matrimonial house bearing
Municipal No.B-58, Tilak Vihar, Delhi and that he suspects
some foul play in the death of the deceased. A copy of the
aforesaid DD entry was handed over to SI Anil Kumar PW-17,
for investigation upon which accompanied by Const.Vinod
Kumar he proceeded to the house in question where he found
that the deceased was lying dead on the floor of a room in the
house in question; that there was a ligature mark on the neck
of the deceased; that there were some burn marks on the left
side of the chest of the deceased and that Surjit Singh PW-1
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and Trilok Singh PW-2, the brothers of the deceased, Judia
Singh PW-3, the father of the deceased, Vidya Kaur PW-7, the
sister of the deceased and appellants Balbir Singh and Kamla
Devi, the husband and mother-in-law of the deceased
respectively, were present there.
3. SI Anil Kumar PW-17, recorded the statement Ex.PW-2/A
of Trilok Singh and made an endorsement Ex.PW-17/A thereon,
and at around 04.35 P.M. handed over the same to
Const.Vinod Kumar for registration of an FIR. Const.Vinod
Kumar took the endorsement Ex.PW-17/A to the police station
and handed over the same to HC Jai Kumar PW-13, who
recorded the FIR No.61/2002 Ex.PW-13/A.
4. In his statement Ex.PW-2/A, Trilok Singh stated that the
marriage of the deceased was solemnized with appellant
Balbir Singh on 05.12.2001. The appellants were harassing
the deceased for bringing insufficient dowry. On 28.01.2002 he
and his sister Vidya Kaur went to the matrimonial house of the
deceased where the deceased told them that she is being
harassed for bringing insufficient dowry. He and his sister tried
to counsel the appellants upon which the appellants told them
that they will keep harassing the deceased till their demands
for dowry are met.
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5. Thereafter SI Anil Kumar recorded the statements Mark
PW-1/A, Ex.PW-3/B and Mark PW-7/A of Surjeet Singh, Judia
Singh and Vidya Kaur respectively under Section 161 Cr.P.C.
wherein they also stated that the deceased was being
harassed by the appellants for bringing insufficient dowry.
6. SI Anil Kumar PW-17, prepared the rough site plan
Ex.PW-17/B of the house in question; recording therein at point
„A‟ the room where the deceased was found dead. In the
meantime, Gurdeep Singh PW-11, reached the house in
question; on being summoned. Gurdeep Singh took the
photographs Ex.PW-11/A-1 to Ex.PW-11/A-8 of the body of the
deceased and the room where the deceased was found dead;
negatives whereof are Ex.PW-11/B-1 to Ex.PW-11/B-8.
7. Since the needle of suspicion was pointing towards the
appellants, SI Anil Kumar arrested them. On being interrogated
by SI Anil Kumar in the presence of Const.Pappu Singh PW-5,
appellant Balbir Singh made a disclosure statement Ex.PW-2/F
wherein he stated that he and appellant Kamla Devi had
murdered the deceased and that he can get recovered a tie
and a press used by him for murdering the deceased. Pursuant
thereto, appellant Balbir Singh led the aforesaid police officers
to a room in the house in question and got recovered a tie and
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a press from an almirah lying in the said room and seized the
aforesaid articles vide memo Ex.PW-17/C.
8. On the next day i.e. 01.02.2002 Suraj Bhan PW-16, Sub-
Divisional Magistrate, reached the house in question and
recorded the statement Ex.PW-3/A of Judia Singh wherein he
stated that the deceased was being harassed by the
appellants for bringing insufficient dowry.
9. On the day when the dead body of Pinki Kaur was seen
by the police in her matrimonial house i.e. on 31.1.2002, the
body was seized and sent to the mortuary where on 1.2.2002
Dr.Lalit Kumar PW-4 conducted the post-mortem and prepared
the post-mortem report Ex.PW-4/A. The relevant portion of the
post-mortem report Ex.PW-4/A of the deceased reads as
under:-
“......Blood stained (illegible) fluid just below the
nostrils. Bleeding from pin hole opening in the
middle of pina of right ear. Face is seen swollen and
flushed. Petechial haemorrhagic spots are seen on
both cheeks and chin and both ear lobules. Mouth is
partially open and lips are cyanosed and tongue is
seen partially coming out of mouth and pressed
between the teeth in front. Eyes are seen closed
and eye lids are swollen and greenish blue in colour.
On cutting the eye lids streak of blood (clotted) is
seen present just below (illegible) of the eye lids
which is suggestive of blunt impact on both the
eyes. On opening eye lids cornea is seen hazy and
cloudy. Inner and outer canthus and inner canthus
of both the eyes shows haemorrhage and petechial
haemorrhagic spot on conjunctive of both the eyes.
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The pupil of both eyes is dilated.....Hands are
clenched.
Injuries
1. An area of burn injury (11 x 9 cm), dark brown
in colour and its margins are irregular and situated
in upper part of chest on left side in front and more
on medial side and its upper boundary is seen at
base of neck and cuts all layer of skin in this area is
seen absent. It is hard in consistency and irregular
in shape and its margin shows sign of burning.
2. One abraded ligature mark placed transversely
in the upper part of neck at the level of upper
border of thyroid cartilage all around the neck. The
ligature mark is more prominent in front of neck
and both side of the neck while it is faintly present
on back side of the neck just below the posterior
hair line. The ligature mark dark brown in colour at
intermittent places while it is red in between. The
width of the ligature mark is 2 cm in front of the
neck while it varies from 2 cm to 2.5 cm and goes
backward. It is hard, dried and parchment like and
its margins are ecchymosed. No ligature mark is
seen tied around the neck at the time of post-
mortem.
.....
Brain Matter (Illegible) - Congested and shows
petechial haemorrhagic spots all over the surface of
the brain.
.....
Mouth and Tongue - Posterior part of tongue is seen
swollen and bruised.
Neck, Larynx, Thyroid and other neck structure- On
cutting the ligature mark there is extravasation in
subcutananeous tissues under lying ligature mark
and also in adjacent tissue and neck muscles.
Fracture of right cornua of hyoid bone and
haemorrhage is seen around the fractured site.
.....
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Trachea and Bronchi – Illegible of trachea is
congested and covered with frothy mucus.
....
Lungs – Plura and lungs of both the sides are seen
markedly congested and on cutting dark colour
blood is seen coming out.
Heart and pericardial sac – Right side of the heart is
filled with dark coloured fluidly blood and left side of
heart is empty.
.....
Stomach and content – Undigested food 400 mg.
.....
Death is due to asphyxia following strangulation. All
injuries are anti-mortem and are of same duration.
Time since death is approximately 39 to 40 hrs.”

10. Armed with the aforesaid materials, the police filed a
charge sheet under Sections 498-A and 304-B IPC read with
Section 34 IPC against the appellants.
11. On 17.07.2002 the case was fixed before the learned
Trial Court for arguments on framing of charges against the
appellants. During arguments, it was contended by the learned
public prosecutor that a charge for murdering the deceased
i.e. an offence punishable under Section 302 IPC be framed
against the appellants. Vide order dated 25.07.2002 the
learned Trial Court repelled the aforesaid argument advanced
by the learned public prosecutor in following terms:-
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“Addl P.P. has referred to the Post Mortem report
according to which cause of death is Asphyxia
following strangulation and all the injuries and
ligature mark are ante mortem in nature and of
same duration. Time since death is 39/40 hours.
Post Mortem was conducted on 01.2.2002 at about
4.30 P.M. In that Post Mortem report the external
injuries came to be reported which is in an area of
burn injury 11 x 9 cm which is situate in upper part
of chest. According to prosecution the burn portion
allegedly was caused by the accused persons with
the hot Iron Press. These are the reasons which the
ld. Addl. P.P. make ground for attracting the offence
of murder under section 304 IPC. (It may be noted
here that due to a typographical error Section 302
IPC has been referred as Section 304 IPC)
I have given thoughtful consideration to this
argument of ld. Addl. P.P. But at this stage I am not
inclined to accept this argument since there is no
direct evidence so at this stage and on perusal of
the material and the file before me I find that there
exists a prima facie case for the offence under
section 498A IPC and 304B IPC read with section 34
IPC against both the accused persons.” (Emphasis
Supplied)
12. At the trial, the prosecution examined 17 witnesses.
13. Witnesses Surjeet Singh PW-1, Trilok Singh PW-2, Judia
Singh PW-3 and Vidya Kaur PW-7, the family members of the
deceased, did not support the case of the prosecution and turn
hostile. They denied having made statements Mark PW-1/A,
Ex.PW-2/A, Ex.PW-3/B and Mark PW-7/A to the police. Judia
Singh PW-3, also denied having made statement Ex.PW-3/A to
Sub-Divisional Magistrate. Additionally, Trilok Singh PW-2,
deposed that in the morning of 31.01.2002 one Darshan Singh
informed him over telephone about the death of the deceased
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and that the deceased was happy in her matrimonial home.
Vidya Kaur PW-7, also deposed that the deceased was happy
in her matrimonial home. Thus, the parents of the deceased
and her siblings denied that the deceased was being troubled
and harassed for dowry by her husband and her mother-in-law,
the only two persons with whom she was residing in her
matrimonial house. They resiled from what they had told the
learned SDM and the investigating officer. It is apparent that
the parents and the siblings of Pinki Kaur betrayed her love,
confidence and trust.
14. Darshan Singh PW-6, a neighbour of the appellants and
the deceased, deposed that he informed the brother of the
deceased Trilok Singh over telephone about the death of the
deceased.
15. On 07.03.2003 Dr.Lalit Kumar PW-4, was examined by
the prosecution. He deposed that the post-mortem report
Ex.PW-4/A of the deceased was prepared by him and that his
opinion pertaining to the cause of the death of the deceased,
based on his observations during post-mortem was that it was
a case of homicide and not suicide.
16. On 24.02.2004 the learned public prosecutor submitted
before the learned Trial Court that a charge for committing
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offence punishable under Section 302 IPC be framed against
the appellants, for the evidence of Dr.Lalit Kumar establishes
that the cause of death of the deceased was strangulation. The
aforesaid argument was accepted by the learned Trial Court in
the following terms:-
“....At this stage APP submits that charge is liable to
be amended in view of the autopsy surgeon Dr.Lalit
Kumar. It is pointed out that the doctor had opined
that the death has been caused due to asphyxia
due to strangulation and that all injuries were ante
mortem. This witness was not cross-examined.
Hence it was contended that the charge be modified
to one under Section 302 IPC. Learned counsel for
the defence on the other hand submits that the
charge has been framed under 498A/304B IPC read
with Section 34 IPC after hearing all the submissions
on behalf of the ld.APP and therefore, there was no
occasion now to re-frame the charge. The learned
counsel for the defence points out that the relatives
of the deceased are all hostile to the prosecution
case which factor be also considered.
This would not be the stage in which the assess
the evidence on the record. The order dated
25.7.2002 whereby the charge was directed to be
framed under Section 498A/304B read with Section
34 IPC did consider the submissions of the learned
APP based on the Post Mortem report. The learned
court vide the said order observed that at that
stage since there was no direct evidence, prima
facie case for the offence under Section 498 A and
304 B read with Section 34 IPC alone was made out.
However, in the light of the statement on oath of
the autopsy surgeon made on 7.3.2003, it does
appear that the charge has to be reframed since the
doctor‟s opinion is that death is due to asphyxia
following strangulation. Hence, I direct that the
charge be re-framed to include an additional charge
under Section 302 IPC.”
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17. Thereafter, and opportunity was granted to the
appellants to re-summon for purposes of cross-examination
the witnesses who had been examined till date. The
appellants chose only to cross-examine Dr.Lalit Kumar and
hence Dr.Lalit Kumar PW-4, was recalled for cross-
examination.
18. Though the learned public prosecutor did not pray for
any leave to further examine Dr.Lalit Kumar, but we note that
when Dr.Lalit Kumar was re-summoned, he was further
examined in chief and then cross-examined without any
objection being raised by the appellants pertaining to Dr.Lalit
Kumar being further examined.
19. Thus, save and except to note that during arguments in
the appeal an issue was raised qua the further examination of
Dr.Lalit Kumar when he was re-summoned, but since no
prejudice was shown as having been caused to the appellants,
we note no further.
20. On being cross-examined about the burn mark found on
the chest of the deceased, Dr.Lalit Kumar stated (Quote): ‘The
burn injury found on the person of the deceased is not possible
if the heated object fell on the body of the deceased or the
body fell over the heated object since such burn are possible
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when it has been applied on to the body.’ On being cross-
examined about the ligature mark found on the neck of the
deceased, Dr.Lalit Kumar stated (Quote): ‘The injury No.2 is
not possible if a person hang herself because the nature of the
ligature mark coupled with the placement ligature mark and
the internal injury are possible on strangulation.’ It may be
noted here that the defence neither put any question nor gave
any suggestion to the witness to the effect that he does not
have adequate knowledge in the subject of forensic pathology.
21. In their examination under Section 313 Cr.P.C. save and
except admitting the facts that the marriage between the
deceased and appellant Balbir Singh was solemnized on
05.12.2001; that they and the deceased resided in the house
where the deceased was found dead and that SI Anil Kumar
visited the house in question on 31.01.2002, the appellants
denied everything.
22. With regard to the explanation for the death of the
deceased, appellant Balbir Singh stated as under:-
“I and my mother are innocent. Since the death had
taken place in our house we have been falsely
implicated in this case. We were sitting outside the
house when my wife committed suicide. The burn
marks were sustained by her while cooking.”
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23. With regard to the explanation for the death of the
deceased, appellant Kamla Devi stated as under:-
“It is a false case. I am innocent. I do not know
anything about the death. We had got her married
to my son in great happiness. I do not know how
she died. We were sitting outside the house. She
was making rotis. I do not know how she sustained
burn injuries.”
24. In defence, the appellants examined Chammi Kaur DW-1.
She deposed that she resides in the vicinity of the matrimonial
house of the deceased. She had met the deceased on several
occasions. The deceased never made any complaint to her and
was happy in her matrimonial house. On one day in the year
2004 at about 6-6.30 P.M. she learnt from some children that
the deceased had sustained burn injuries upon which she went
to the matrimonial house of the deceased where she met the
deceased. She noticed a burn mark on the chest of the
deceased. The deceased told her that she had sustained burn
injuries when she felt giddy while cooking and fell on a hot
object. On the next morning she came to know that the
deceased had hanged herself.
25. Vide judgment and order dated 15.10.2004 the learned
Trial Court convicted the appellants qua the charge under
Section 302 IPC read with Section 34 IPC but acquitted them
qua the charge under Sections 498-A and 304 B IPC read with
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Section 34 IPC. The learned Trial Court acquitted the
appellants qua charges under Sections 498-A IPC read with
Section 34 IPC framed against them on the ground that the
prosecution has not been able to establish that the appellants
had demanded dowry or that they had harassed the deceased
for dowry, since the relatives of the deceased did not support
the case of the prosecution. Insofar as the charge under
Section 302 IPC framed against the appellants was concerned,
it was held by the learned Trial Court that in view of Section
106 of Evidence Act it was incumbent upon the appellants to
explain as to how the deceased died a homicidal death as also
how the deceased sustained injuries found on her person as
the death of the deceased took place in a house at the time
when the appellants were present there. It has been held that
the fact that the appellants did not furnish a satisfactory
explanation in respect of aforesaid circumstances is a clear
pointer to the fact that the appellants committed the murder
of the deceased. Vide order dated 16.10.2004 learned Trial
Court sentenced the appellants to undergo imprisonment for
life for committing offence punishable under Section 302 IPC
read with Section 34 IPC.
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26. During the hearing of the present appeal, following four
arguments were advanced by the learned senior counsel for
the appellants:-
A The first argument advanced by the learned senior
counsel was predicated upon the order dated 24.02.2002
passed by the learned Trial Court. Learned senior counsel
argued that a reading of the order dated 24.02.2002 shows
that the learned Trial Court did not consider it proper to frame
a charge against the appellants for committing offence
punishable under Section 302 IPC and therefore once having
“consciously” dropped the charge under Section 302 IPC
against the appellants the learned Trial Court was not justified
in subsequently framing the same charge against the
appellants.
B The second argument advanced by the learned senior
counsel was predicated upon the evidence of Dr.Lalit Kumar
PW-4 and Section 45 of the Evidence Act. It was argued by the
learned senior counsel that in view of language of Section 45
of Evidence Act before a person can be characterized as an
expert, it is necessary that there must be some material on
record to show that he is skilled in the subject on which he
testifies and is possessed with adequate knowledge
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concerning the same. Thus, before the testimony of an expert
witness becomes admissible, his competency as an expert
must be shown, by showing that he was possessed of
necessary qualification or that he has acquired special skill
therein by experience. It was argued that in view of the
aforesaid legal position, the evidence of Dr.Lalit Kumar should
not be read in evidence for the reason the prosecution has not
led any evidence to show that Dr.Lalit Kumar was “skilled” in
the subject of forensic pathology. In support of the said
argument, reliance was placed upon the decision of Allahabad
High Court reported as Balkrishna Das Agarwal v Radha Devi
AIR 1989 All 33.
C The third submission advanced by the learned senior
counsel was predicated upon the post-mortem report Ex.PW-
4/A of the deceased and Modi‟s Medical Jurisprudence and
Toxicology. Counsel submitted that as per Modi‟s „Medical
Jurisprudence and Toxicology‟ in case of strangulation the
ligature mark found on the neck of the victim is continuous;
that the ligature mark is placed low down in the neck; that the
base of the ligature mark is soft and reddish and scratches,
abrasions, finger nail marks and bruises are usually found on
the face, neck and other parts of the body of the victim while
in case of hanging the ligature mark found on the neck of the
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victim is non-continuous; that the ligature is placed high up in
the neck; that the base of the mark is hard, yellow and
parchment-like and scratches, abrasions, finger nail marks and
bruises are usually not found on the face, neck and other parts
of the body of the victim. In the backdrop of aforesaid
literature, counsel drew attention of the court to the
photographs Ex.PW-11/A-5 and Ex.PW-11/A-8 and the post-
mortem report Ex.PW-4/A of the deceased. Counsel pointed
out that the photographs Ex.PW-11/A-5 and Ex.PW-11/A-8 of
the deceased show that the ligature mark found on the neck of
the deceased was non-continuous and that the post-mortem
report Ex.PW-4/A of the deceased records that the ligature
mark found on the neck of the deceased was placed in the
upper part of the neck of the deceased and that the same was
hard, dried and parchment-like. Counsel lastly pointed out that
a reading of the post-mortem report Ex.PW-4/A of the
deceased shows that no scratches, abrasions, finger nail marks
or bruises were found on the face, neck or any other part of
the body of the deceased. Counsel submitted that the
aforesaid three facts pointed out by him are strongly
suggestive of the fact that the deceased committed suicide by
hanging herself and negative the case of the prosecution that
the cause of death of the deceased was strangulation.
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D The fourth submission advanced by the learned counsel
for the appellants was predicated upon Section 106 of the
Evidence Act. The first limb of the submission advanced by the
counsel is that it is settled legal position that Section 106 of
Evidence Act does not abrogate the well established rule of
criminal law that except in very exceptional classes of cases
the burden that lies on prosecution to prove its case never
shifts and that Section 106 is not intended to relieve the
prosecution of that burden. It is not sufficient for the
prosecution to establish facts which only give rise to a
suspicion and then by reason of Section 106 throw the onus
upon the accused to prove his innocence. Counsel argued that
in the instant case, not even an iota of evidence was led by the
prosecution to establish that the appellants are the
perpetrators of the crime of the murder of the deceased and in
this view of the matter the learned Trial Court committed an
illegality in invoking Section 106 of Evidence Act to infer the
guilt of the appellants. In support of the said argument,
reliance was placed by the counsel on the decision reported as
Dasari Siva Prasad Reddy v The Public Prosecutor, High Court
of A.P. AIR 2004 SC 4383 and Vikramjit Singh v State of Punjab
Cri.L.J. 1000.
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27. Whether the learned Trial Court committed an illegality in
framing the charge under Section 302 IPC against the
appellants?
28. The answer to the aforesaid question can be found in
Section 216 of Code of Criminal Procedure, 1973 which reads
as under:-
“216. Court may alter charge - (1) Any Court
may alter or add to any charge at any time before
judgment is pronounced.
(2) Every such alteration or addition shall be read
and explained to the accused.
(3) If the alteration or addition to a charge is such
that proceeding immediately with the trial is not
likely, in the opinion of the Court to prejudice the
accused in his defence or the prosecutor in the
conduct of the case the Court may, in its discretion,
after such alteration or addition has been made,
proceed with the trial as if the altered or added
charge had been the original charge.
(4) If the alteration or addition is such that
proceeding immediately with the trial is likely, in
the opinion of the Court to prejudice the accused or
the prosecutor as aforesaid, the Court may either
direct a new trial or adjourn the trial for such period
as may be necessary.
(5) If the offence stated in the altered or added
charge is one for the prosecution of which previous
sanction is necessary, the case shall not be
proceeded with until such sanction is obtained,
unless sanction had been already obtained for a
prosecution on the same facts as those on which
the altered or added charge is founded.”
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29. With regard to the power of the trial court to add or alter
any charge during the trial, in the decision reported as
Hasanbhai Valibhai Quereshi v State of Gujarat (2004) 5 SCC
347 Supreme Court observed as under:-
“Section 228 of the Code in Chapter XVII and
Section 240 in Chapter XIX deal with framing of the
charge during trial before a Court of Sessions and
trial of Warrant -cases by Magistrates respectively.
There is a scope of alteration of the charge during
trial on the basis of materials brought on record.
Section 216 of the Code appearing in Chapter XVII
clearly stipulates that any court may alter or add to
any charge at any time before judgment is
pronounced. Whenever such alteration or addition is
made the same is to be read out and informed to
the accused.
In Kantilal Chandulal Mehta v. State of Maharashtra
1970 CriLJ 510 it was held that the Code gives
ample power to the Courts to alter or amend a
charge whether by the Trial Court or by the
Appellate Court provided that the accused has not
to face a charge for a new offence or is not
prejudiced either by keeping him in the dark about
the charge or in not giving him a full opportunity of
meeting it and putting forward any defence open to
him on the charge finally preferred against him.
Section 217 deals with recall, if necessary of
witnesses when the charge is altered.
Therefore, if during trial the trial Court on a
consideration of broad probabilities of the case
based upon total effect of the evidence and
documents produced is satisfied that any addition
or alteration of the charge is necessary, it is free to
do so, and there can be no legal bar to
appropriately act as the exigencies of the case
warrant or necessitate.” (Emphasis Supplied)
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30. Therefore, in view of Section 216 of Cr.P.C., the learned
Trial Court was completely justified in adding the charge under
Section 302 IPC against the appellants when Dr.Lalit Kumar
PW-4, entered the witness-box and deposed that the cause of
death of the deceased was strangulation. It is also significant
to note the use of the expression “at this stage” in the order
dated 24.02.2002 passed by the learned Trial Court, relevant
portion whereof has been noted in para 11 above. The use of
the expression “at this stage” in the order dated 24.02.2002
shows that the material before the Court at that stage was
found insufficient to frame a charge under Section 302 IPC;
thus it was left open that should at a later stage an occasion
arise, charge for the offence under Section 302 IPC may be
framed.
31. Section 45, Indian Evidence Act 1872 reads as under:-
“45. Opinion of experts – When the Court has to
form an opinion upon a point of foreign law or of
science or art, or as to identity of handwriting or
finger impressions, the opinion upon that point of
persons specially skilled in such foreign law, science
or art, or in questions as to identity of handwriting or
finger impressions, are relevant facts.
Such persons are called experts.”
32. Section 45 permits only the opinion of an expert to be
cited in evidence. This requires determination of the question
Crl.Appeal Nos.922 & 904 of 2004 Page 21 of 45


as to who is an expert. The only guidance in the section is that
he should be a person “specially skilled” on the matter. Thus,
the only definition of an expert available in Evidence Act is
that he is a person specially skilled in the subject on which he
testifies. The section does not refer to any particular
attainment, standard of study or experience, which would
qualify a person to give evidence as an expert. The question
which arises is that what is the criterion for determining
whether a witness is “specially skilled” or not. The answer to
this question is to be found in decision of Supreme Court
reported as State of HP v Jai Lal (1999) 7 SCC 280 wherein it
was held that in order to bring the evidence of a witness as
that of an expert it has to be shown that he has made a
special study of the subject or acquired a special experience
therein or in other words that he is skilled and has adequate
knowledge of the subject.
33. Judged in the said background, can it be said that there is
no material before the court wherefrom it could be concluded
that Dr.Lalit Kumar PW-4, is “specially skilled” in the subject
forensic pathology. Dr.Lalit Kumar was working as Chief
Medical Officer in Deen Dayal Upadhyaya Hospital at the time
when he testified before the learned Trial Court. The facts that
Dr.Lalit Kumar was Chief Medical Officer and was conducting
Crl.Appeal Nos.922 & 904 of 2004 Page 22 of 45


post-mortems in a reputed government hospital are indication
in itself that Dr.Lalit Kumar was skilled and had adequate
knowledge of forensic pathology. As already noted
hereinabove, the defence neither put any question nor gave
any suggestion to Dr.Lalit Kumar to the effect that he is not
“specially skilled” in forensic pathology. In such circumstances,
we do not find any merit in the submission of learned senior
counsel that the evidence of Dr.Lalit Kumar cannot be read in
evidence.
34. The decision of Allahabad High Court in Balkrishna ‟s case
(supra) relied upon by the learned senior counsel for the
appellants is clearly distinguishable from the present case. In
the said case, the issue of admissibility of the report given by a
handwriting report who did not enter the witness-box was
raised before the court. In view of the fact that the person who
prepared the report did not enter the witness-box, it was held
by the court that there is no material on record to show that
the said person was an expert within the meaning of Section
45 of the Evidence Act and thus the report given by him could
not be admitted in evidence. It was further held by the court
that the letter head on which the report was typed alone will
not prove that the author of the report was an expert.
Crl.Appeal Nos.922 & 904 of 2004 Page 23 of 45


35. Whether Dr.Lalit Kumar PW-4, erred in concluding that
the death of the deceased was caused by strangulation?
Whether the defence is correct in contending that the
deceased committed suicide by hanging herself?
36. With regard to strangulation, the relevant portion
contained in Modi‟s „Medical Jurisprudence and Toxicology‟
reads as under:-
“STRANGULATION
......
Postmortem Appearance
Postmortem appearances are external and internal.
(i) External Appearance
.....
(a) Ligature Mark
Ligature mark is a well-defined and slightly
depressed mark corresponding roughly to the
breadth of ligature, usually situated low down in the
neck below the thyroid cartilage, and encircling the
neck horizontally and completely..... The mark may
be oblique as in hanging, if the victim has been
dragged by a cord after he has been strangled in a
recumbent posture, or if the victim was sitting and
the assailant applied a ligature on the neck while
standing behind him, thus using the force backward
and upward. The base of the mark, which is known
as a groove or furrow, is usually pale with reddish
and ecchymosed margins. It becomes dry, hard and
parchment-like, several hours after death, if the skin
has been excoriated.... Very often, there are
abrasions and ecchymosed in the skin adjacent to
the marks......
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Besides these marks, there may be abrasions and
bruises on the mouth, nose, cheeks, forehead, lower
jaw or any other part of the body, if there has been a
struggle.
......
(b) Appearances Due to Asphyxia
The face is puffy and cyanosed, and marked with
petechiae. The eyes are prominent and open. In
some cases, they may be closed. The conjunctivae
are congested and the pupils are dilated. Petechiae
are seen in the eyelids and the
conjunctivae.....Bloody foam escapes from the
mouth, nose and ears, especially if great violence
has been used. The tongue is often swollen, bruised,
protruding and dark in colour, showing patches of
extravasation and occasionally bitten by the
teeth.....The hands are usually clenched.....
(ii) Internal Appearance
.....There is extravasation of blood into sub-
cutaneous tissues under the ligature mark or finger
marks, as well as in the adjacent muscles of the
neck, which are usually lacerated....The cornua of the
hyoid bone may be fractured also the superior
cornua of thyroid cartilage but fracture of the
cervical vertebrae is extremely rare.....
....
The larynx and trachea are congested, and contains
frothy mucus.....
It should be noted here that the hyoid bone and
superior cornuae of the thyroid cartilage are not, as a
rule, fractured by any other means other than by
strangulation, although the larynx and the trachea
may, in rare cases, be fractured by a fall....
....
The lungs are usually markedly congested, showing
haemorrhagic patches and petechiae and exuding
dark fluid blood on section....The right side of the
heart is full of dark fluid blood, and the left
Crl.Appeal Nos.922 & 904 of 2004 Page 25 of 45


empty....The brain is also congested and shows
petechial haemorrhages.
.....
Differences Between Hanging and Strangulation
The differences between hanging and strangulation
are given below in tabulated form:

Crl.Appeal Nos.922 & 904 of 2004 Page 26 of 45


37. With reference to the post-mortem report Ex.PW-4/A of
the deceased, when seen in the light of afore-noted literature
contained in Modi‟s Medical Jurisprudence (supra), following
findings recorded in the report Ex.PW-4/A point towards the
fact that the cause of death of the deceased was
strangulation:-
(i) Bleeding near nostrils and ears.
(ii) Petechial haemorrhage spots seen on the cheeks, chin
and both the ear lobules.
(iii) Tongue was coming out of mouth.
(iv) Lips were found cyanosed.
(v) Inner and outer canthus of both eyes showed
haemorrhage and petechial haemorrhagic spots found on
conjunctivae of both eyes.
(vi) The pupil of both the eyes were dilated.
(vii) Hands were clenched.
(viii) The margins of ligature mark were ecchymosed.
(ix) There was extravasation in subcutananeous tissues
under ligature mark as well as in adjacent tissues and neck
muscles.
Crl.Appeal Nos.922 & 904 of 2004 Page 27 of 45


(x) Right cornua of hyoid bone was fractured.
(xi) Trachea was congested and covered with frothy
mucus.
(xii) Lungs were markedly congested and dark coloured blood
was coming out of lungs.
(xiii) Right side of heart was filled with blood and left side was
empty.
(xiv) Brain was congested.
(xv) Petechial haemorrhagic spots found all over the surface
of the brain.
38. Besides the afore-noted pointers, there are two other
circumstances which rule out the possibility that the deceased
committed suicide by hanging herself. As per the post-mortem
report Ex.PW-4/A of the deceased, a streak of clotted blood
was found on the eye-lids of the deceased and that the same
was suggestive of blunt impact injuries on both the eyes.
(Blunt impact eye injuries occur when the object larger than
the eye socket strike the eye). In addition to the said injury, a
burn injury was also found on the left side of the chest of the
deceased. An attempt was made by the defence to project
through the defence of Chammi Kaur DW-1, that the deceased
Crl.Appeal Nos.922 & 904 of 2004 Page 28 of 45


had accidentally burnt herself when she fell on a hot object
while cooking. However, the deposition of Dr.Lalit Kumar PW-4,
that ‘The burn injury found on the person of the deceased is
not possible if the heated object fell on the body of the
deceased or the body fell over the heated object since such
burn are possible when it has been applied on to the body’
negatives the aforesaid defence of the appellants. Surely, the
deceased would not have injured herself before committing
suicide.
39. Insofar as the argument advanced by the learned senior
counsel pertaining to placement and nature of ligature mark
found on the neck of the deceased is concerned, in cases
where a cloth is tied as a noose around the neck of the victim
and the victim is strangulated by pulling the knot of the cloth,
it is possible that the ligature mark found on the neck of the
victim would resemble the mark found in case of hanging.
40. Be that as it may, the defence did not put any question
to Dr.Lalit Kumar PW-4, pertaining to the placement and
nature of the ligature mark found on the neck of the deceased.
41. Having given no opportunity to the witness to explain the
placement and nature of the ligature mark found on the neck
Crl.Appeal Nos.922 & 904 of 2004 Page 29 of 45


of the deceased, no adverse inference can be drawn against
the prosecution on that score.
42. In taking the said view, we are supported by a decision of
Supreme Court reported as Rahim Khan v Khurshid Ahmad AIR
1975 SC 290 wherein it was observed as under:-
“…….The entry with which we are concerned is
5072A and this is not unusual when by mistake a
clerk has written identical figures for two entries.
Moreover there is no cross-examination on this point
and in the absence of cross-examination giving an
opportunity to the witness to explain the
circumstances from which an inference is sought to
be drawn, no such inference--particularly of forgery
and publication of documents--can be permitted to
be raised.” (Emphasis supplied)

43. In the decision reported as State of UP V Anil Singh 1988
(Supp) SCC 686, the eye-witness wrote a report giving fairly all
the particulars of the occurrence and lodged the same with the
report within few minutes of the occurrence. An argument was
raised by the defence that it was impossible for the witness to
prepare such an exhaustive report and lodge the same with
the police so soon after the occurrence. The said argument
was repelled by Supreme Court on the ground that the witness
in question was not specifically cross-examined on the said
point.
Crl.Appeal Nos.922 & 904 of 2004 Page 30 of 45


44. In the decision reported as Sunil Kumar v State of
Rajasthan (2005) 9 SCC 298 great emphasis was laid by the
defence on the facts that there was delayed dispatch of the
FIR to the Ilaqa Magistrate and delayed recording of the
statements of the witnesses under Section 161 CrPC. One of
the reasons which weighed with Supreme Court for not
drawing an adverse inference against the prosecution was that
no question was put to the Investigating Officer regarding the
aforesaid delay.
45. In respect of the argument that no scratches, bruises or
abrasions were found on the face, neck, nose or parts of the
body of the deceased, relevant would it be to note that as per
Modi‟s Medical Jurisprudence (supra), scratches, bruises or
abrasions would be found on the body of the victim where the
victim tries to struggle with his assailant. Therefore, scratches,
bruises or abrasions would not be found on the body of the
victim where the victim does not struggle with his assailant
because the victim was taken by surprise or any other reason.
46. In respect of the argument that ligature mark found on
the neck of the deceased was hard, dried and parchment-like,
suffice would it be to state that the post-mortem of the
deceased was conducted 39-40 hours after the death of the
Crl.Appeal Nos.922 & 904 of 2004 Page 31 of 45


deceased as recorded in the post-mortem report Ex.PW-4/A of
the deceased and that as per Modi‟s Medical Jurisprudence
(supra) that in case of strangulation the ligature mark found on
the neck of the victim becomes hard, dry and parchment-like,
several hours after the death.
47. What is the scope and purport of Section 106 of the
Evidence Act?
48. Section 106 of the Evidence Act and the illustrations
appended thereto reads as under:-
“106. Burden of proving fact especially within
knowledge- When any fact is especially within the
knowledge of any person, the burden of proving
that fact is upon him.
Illustrations
(a) When a person does an act with some intention
other than that which the character and
circumstances of the act suggest, the burden of
proving that intention is upon him.
(b) A is charged with travelling on a railway without
a ticket. The burden of proving that he had a ticket
is on him.”
49. The earliest cases on the point are decisions of Privy
Council reported as Attygalle v Emperor (1936) 38 Bom LR 700
and Stephen Seneviratne v The King (1937) 39 Bom LR 1. In
the said decisions, the Lordships of Privy Council were dealing
with Section 108 of Ceylon Evidence Act which corresponded
to Section 106 of Indian Evidence Act. It was held that Section
Crl.Appeal Nos.922 & 904 of 2004 Page 32 of 45


106 of Evidence Act does not affect the onus of proof and
throw upon the accused the burden of establishing his
innocence.
50. The aforesaid decisions of Privy Council came to be
considered by Supreme Court in the decision reported as
Shambhu Nath Mehra v State of Ajmer AIR 1956 SC 404
wherein it was observed as under:-
“This lays down the general rule that in a criminal
case the burden of proof is on the prosecution and
section 106 is certainly not intended to relieve it of
that duty. On the contrary, it is designed to meet
certain exceptional cases in which it would be
impossible, or at any rate disproportionately
difficult, for the prosecution to establish facts which
are "especially" within the knowledge of the
accused and which he could prove without difficulty
or inconvenience. The word "especially" stresses
that. It means facts that are pre-eminently or
exceptionally within his knowledge. If the section
were to be interpreted otherwise, it would lead to
the very startling conclusion that in a murder case
the burden lies on the accused to prove that he did
not commit the murder because who could know
better than he whether he did or did not. It is
evident that that cannot be the intention and the
Privy Council has twice refused to construe this
section, as reproduced in certain other Acts outside
India, to mean that the burden lies on an accused
person to show that he did not commit the crime for
which he is tried. These cases are Attygalle v.
Emperor A.I.R. 1936 P.C. 169 and Seneviratne v. R.
[1936] 3 All E.R. 36, 49.
.....
We recognise that an illustration does not exhaust
the full content of the section which it illustrates but
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equally it can neither curtail nor expand its ambit;
and if knowledge of certain facts is as much
available to the prosecution, should it choose to
exercise due diligence, as to the accused, the facts
cannot be said to be "especially" within the
knowledge of the accused. This is a section which
must be considered in a commonsense way; and
the balance of convenience and the disproportion of
the labour that would be involved in finding out and
proving certain facts balanced against the triviality
of the issue at stake and the ease with which the
accused could prove them, are all matters that
must be taken into consideration. The section
cannot be used to undermine the well established
rule of law that, save in a very exceptional class of
case, the burden is on the prosecution and never
shifts.”
51. The decision of Shambhu ‟s case (supra) was noticed by
Supreme Court in the decision reported as State of WB v Mir
Mohammad Omar AIR 2000 SC 2988. The relevant portion
contained therein is being quoted herein under:-
“The pristine rule that the burden of proof is on the
prosecution to prove the guilt of the accused should
not be taken as a fossilised doctrine as though it
admits no process of intelligent reasoning. The
doctrine of presumption is not alien to the above
rule, nor would it impair the temper of the rule. On
the other hand, if the traditional rule relating to
burden of proof of the prosecution is allowed to be
wrapped in pedantic coverage the offenders in
serious offences would be the major beneficiaries,
and the society would be the casualty.
In this case, when prosecution succeeded in
establishing the afore narrated circumstances, the
court has to presume the existence of certain facts.
Presumption is a course recognised by the law for
the court to rely on in condition such as this.
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Presumption of fact is an inference as to the
existence of one fact from the existence of some
other facts, unless the truth of such inference is
disproved. Presumption of fact is a rule in law of
evidence that a fact otherwise doubtful may be
inferred from certain other proved facts. When
inferring the existence of a fact from other set of
proved facts, the court exercises a process of
reasoning and reach a logical conclusion as the
most probable position. The above principle has
gained legislative recognition in India when Section
114 is incorporated in the Evidence Act. It
empowers the court to presume the existence of
any fact which it thinks likely to have happened. In
that process court shall have regard to the common
course of natural events, human conduct etc. in
relation to the facts of the case.
When it is proved to the satisfaction of the court
that Mahesh was abducted by the accused and they
took him out of that area, the accused alone knew
what happened to him until he was with them. If he
was found murdered within a short time after the
abduction the permitted reasoning process would
enable the court to draw the presumption that the
accused have murdered him. Such inference can be
disrupted if accused would tell the court what else
happened to Mahesh at least until he was in their
custody.
....
In this context we may profitably utilise the legal
principle embodied in Section 106 of the Evidence
Act which reads as follows: "When any fact is
especially within the knowledge of any person, the
burden of proving that fact is upon him."
The section is not intended to relieve the
prosecution of its burden to prove the guilt of the
accused beyond reasonable doubt. But the Section
would apply to cases where the prosecution has
succeeded in proving facts from which a reasonable
inference can be drawn regarding the existence of
certain other facts, unless the accused by virtue of
his special knowledge regarding such facts, failed to
Crl.Appeal Nos.922 & 904 of 2004 Page 35 of 45


offer any explanation which might drive the court to
draw a different inference.” (Emphasis Supplied)
52. It would be most apposite to quote following
observations made by Supreme Court in the decision reported
as Trimukh Maroti Kirkan v State of Maharashtra (2006) 10
SCC 681:-
“If an offence takes place inside the privacy of a
house and in such circumstances where the
assailants have all the opportunity to plan and
commit the offence at the time and in
circumstances of their choice, it will be extremely
difficult for the prosecution to lead evidence to
establish the guilt of the accused if the strict
principle of circumstantial evidence, as noticed
above, is insisted upon by the Courts. A Judge does
not preside over a criminal trial merely to see that
no innocent man is punished. A Judge also presides
to see that a guilty man does not escape. Both are
public duties. (See Stirland v. Director of Public
Prosecution 1944 AC 315 quoted with approval by
Arijit Pasayat, J. in State of Punjab v. Karnail Singh
2003CriLJ3892 ). The law does not enjoin a duty on
the prosecution to lead evidence of such character
which is almost impossible to be led or at any rate
extremely difficult to be led. The duty on the
prosecution is to lead such evidence which it is
capable of leading, having regard to the facts and
circumstances of the case. Here it is necessary to
keep in mind Section 106 of the Evidence Act which
says that when any fact is especially within the
knowledge of any person, the burden of proving
that fact is upon him. Illustration (b) appended to
this section throws some light on the content and
scope of this provision and it reads:
(b) A is charged with traveling on a railway without
ticket. The burden of proving that he had a ticket is
on him.
Crl.Appeal Nos.922 & 904 of 2004 Page 36 of 45


Where an offence like murder is committed in
secrecy inside a house, the initial burden to
establish the case would undoubtedly be upon the
prosecution, but the nature and amount of evidence
to be led by it to establish the charge cannot be of
the same degree as is required in other cases of
circumstantial evidence. The burden would be of a
comparatively lighter character. In view of Section
106 of the Evidence Act there will be a
corresponding burden on the inmates of the house
to give a cogent explanation as to how the crime
was committed. The inmates of the house cannot
get away by simply keeping quiet and offering no
explanation on the supposed premise that the
burden to establish its case lies entirely upon the
prosecution and there is no duty at all on an
accused to offer any explanation.”
53. In the decision reported as Sarojini v State of M.P. 1993
Supp (4) SCC 632 accused Vinod and Sarojini, the husband and
mother-in-law of the deceased, were charged with the offence
of committing the murder of the deceased. The death of the
deceased took place in a house which was in possession and
the occupation of the appellants. Accused Vinod was employed
in a bank and it used to take two hours to travel the distance
between the house where the deceased had died and the
place of work of accused Vinod. The Sessions Court convicted
both the accused while High Court acquitted them. High Court
acquitted accused Vinod on the ground that there is no
evidence to establish that he was present in the house in
question at the time of the death of the deceased while
accused Sarojini was acquitted on the ground that murder was
Crl.Appeal Nos.922 & 904 of 2004 Page 37 of 45


committed in such a manner that she alone could not have
committed the same and that there is no clinching evidence to
show that who had murdered the deceased. In appeal,
Supreme Court convicted accused Sarojini on the grounds that
she was occupant of the house where the deceased had died;
that she had a motive to murder the deceased as she had
demanded dowry from the family members of the deceased;
that her conduct was suspicious and that she had taken a false
defence. Even though there was evidence to show that
accused Vinod was present in the house where the deceased
died at the time of the death of the deceased, Supreme Court
convicted him on the grounds that he was occupant of the
house where the deceased died; that his conduct was
suspicious; that he had taken a false defence; that he had not
given an explanation in his statement under Section 313
Cr.P.C. and that accused Sarojini alone could not have
murdered the deceased. The relevant discussion contained in
the said decision is being quoted herein under:-
“The question then is whether the husband and
mother-in-law alone have committed the offence.
Photography of the scene and the situation of the
house disclose that the house consists of ground
floor and the first floor. In the first floor, a bed room
and another store room was found as per
Panchanama. The dead body was found in the store
room. There is no other way of ingress or egress to
the first floor, except through the staircase lying in
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the ground floor of the house. As such it is
impossible for any other persons to enter into the
house except the inmates. Admittedly, the
deceased and Sarojini alone were living in the
house while Vinod was working at Sidhi, obviously
he was coming and going to his place of duty. The
distance between Rewa and Sidhi is 90 km. The
High Court also accepted the possibility of the
Vinod's coming to Rewa and after committing the
offence leaving Rewa as the journey on the high-
way would take hardly two hours to reach Sidhi. The
murder was committed within hardly three months
from the date of marriage and two to three hours
after night meal. As per the evidence of DW-4 the
deceased was happy in the marital home. It would,
therefore, conclusively exclude the theory of suicide
as pleaded by Sarojini and death was in the
morning at 8.00 or 8.30 a.m. Within a short period
of three months, there is no possibility of anyone
developing such deep enimity with Rajini to put to
end to the life of an young married woman. It must,
therefore, be none other than the inmates of the
matrimonial home.
... When the deceased was done to death by
asphyxia and thereafter the dead body was burnt
soaking kerosene on a naked body, it would be
obvious that more than one participated in
committing the murder. The High Court also found
that Sarojini had an associate to screen the
evidence of murder. Who would be the other
person? Here the presence of Vinod is called into
picture. We are surprised to note that PW-10, the
investigating officer, not only conducted perfunctory
investigation but also gave evidence in a most
unsatisfactory manner. He did not make any
attempt during investigation to collect the evidence
of the presence of Vinod at Rewa during the night or
thereafter. The fact that more than one participated
in the commission of the crime and the fact that
there is no other person inimical to Rajini to commit
the crime and the fact that it is not impossible for
Vinod to immediately leave Rewa for Sidhi after
committing the crime, would clearly connect him to
be a participate criminal in committing homicide of
his wife Rajini. Without his cooperation and
Crl.Appeal Nos.922 & 904 of 2004 Page 39 of 45


participation in committing the crime, on the facts
and circumstances, it is impossible for Sarojini alone
to commit the crime. Except denial he offerred no
explanation in his Section 313 statement. The false
theory of suicide is also a circumstance to be taken
into account. The remorseless conduct of Sarojini is
a relevant fact, conduct of Vinod also is inculpatory.
The normal human conduct would be that on
hearing the news of the death of his wife he was
expected to immediately reach home; to make
enquiry for the cause of death and to take further
actions which are absent in this case. Under these
circumstances we have no hesitation to agree with
the Sessions Court and disagree with the High Court
that Vinod also was a participis criminal in
committing the crime.”
54. The legal norm in respect of the application of Section
106 in a given case is contained in the following observations
of Supreme Court in Mir Mohammad ‟s case (supra):-
“The section is not intended to relieve the prosecution
of its burden to prove the guilt of the accused beyond
reasonable doubt. But the Section would apply to
cases where the prosecution has succeeded in
proving facts from which a reasonable inference can
be drawn regarding the existence of certain other
facts, unless the accused by virtue of his special
knowledge regarding such facts, failed to offer any
explanation which might drive the court to draw a
different inference”
55. Has the prosecution been able to prove facts from which
a reasonable inference can be drawn that the appellants are
the guilty of the murder of the deceased?
56. The facts proved by the prosecution are being
enumerated as under:-
Crl.Appeal Nos.922 & 904 of 2004 Page 40 of 45


A The deceased died a homicidal death.
B The house where the deceased was found dead was in
the possession and occupation of the appellants.
C The appellants were present in the house where the
deceased was found dead at the time of the death of the
deceased.
D There were no signs of any forced entry or the presence
of an intruder/outsider in the house where the deceased was
found dead.
E The post-mortem of the deceased was conducted at
about 04.30 P.M. on 01.02.2002. As per the post-mortem
report Ex.PW-4/A of the deceased, the deceased died 39-40
hours before the conduct of the post-mortem, meaning
thereby, that the deceased died at about 12.30-01.30 A.M. in
the intervening night of 31.01.2002 and 01.02.2002. What did
the appellants do after learning about the death of the
deceased? Do they inform the police? Do they inform the
family members of the deceased? The appellants do nothing of
the kind. They keep silent. The family members of the
deceased were informed about the death of the deceased in
the morning of 01.02.2002 not by the appellants but by their
Crl.Appeal Nos.922 & 904 of 2004 Page 41 of 45


neighbour Darshan Singh. The police was informed about the
unnatural death of the deceased in the afternoon of
01.02.2002 not by the appellants but by the family members
of the deceased. The conduct of the appellants in not
informing the family members of the deceased and the police
about the unnatural death of the deceased is most suspicious.
57. From the aforesaid conspectus of facts, a reasonable
inference can be drawn that the deceased was murdered by
the appellants.
58. Have the appellants been able to dispel the aforesaid
inference? As already noted herein above, appellant Balbir
Singh stated in his examination under Section 313 Cr.P.C. that
the deceased committed suicide and that he and appellant
Kamla Devi were sitting outside the house in question at that
time. The aforesaid explanation given by appellant Balbir
Singh is patently false for the reason the deceased died a
homicidal death as held by us in the foregoing paras. Appellant
Kamla Devi stated in her examination under Section 313
Cr.P.C. that she knows nothing about the death of the
deceased as she was sitting outside the house in question. The
deceased was injured before being strangulated to death. The
deceased must have shrieked or raised some other noise and
Crl.Appeal Nos.922 & 904 of 2004 Page 42 of 45


the same would have attracted the attention of appellant
Kamla Devi. Therefore, the aforesaid explanation given by the
appellant Kamla Devi is not plausible.
59. In view of the facts that the prosecution has been
able to prove such facts wherefrom a reasonable inference can
be drawn that the appellants are the murderers of the
deceased and that appellants have furnished false
explanations to dispel the said inference, it can be held that
the appellants are guilty of the murder of the deceased.
60. In Dasari ‟s case (supra) relied upon by the learned senior
counsel, the accused was charged for the offence of murdering
0his wife. The deceased was found dead in the house occupied
by her and the accused. On the morning of 20.04.1996 the
accused informed the brother of the deceased that something
untoward has happened to his sister and took him to his
house. The death of the deceased had taken place on the night
th th
of 19 April or in the early hours of 20 April. The Sessions
Court acquitted the accused. In appeal, the High Court
convicted the accused on the ground that only the accused
and the deceased were in the house at the relevant time and
that there was no possibility for others to enter into the house.
Supreme Court reversed the decision of the High Court and
Crl.Appeal Nos.922 & 904 of 2004 Page 43 of 45


acquitted the accused on the ground that though the
circumstances of the case are suggestive of strong possibility
of the presence of the accused at his house, the same does
not give rise to an irresistible inference that the accused was
present in his house around the time of the death of the
deceased and the accused alone must have committed the
murder of the deceased.
61. There is a fundamental difference between the facts of
the said case and the present case. In the said case, there was
no evidence to establish the presence of the accused in the
house in question at the time of the death of the deceased
whereas in the instant case the appellants themselves admit
their presence in the house in question at the time of the
death of the deceased. Be that as it may, the legal norm culled
out in Mir Mohammad ‟s case (supra) as also the decision in
Sarojini ‟s case (supra) where Section 106 was invoked to
convict an accused even though there was no evidence on
record establishing his presence in the house in question at
the time of the deceased was not noticed in the said case.
62. The decision in Vikramjit ‟s case (supra) has no
application to the present case for therein the deceased was
Crl.Appeal Nos.922 & 904 of 2004 Page 44 of 45


murdered on a public road and not in the secrecy of a house as
is the position in the instant case.
63. There is yet another fact which is worth noticing. The
appellants had taken a false defence by leading evidence to
the effect that the burn injury found on the chest of the
deceased was sustained by her when she fell on a hot object
by cooking. It is settled legal principle that the circumstance of
false defence taken by an accused is a circumstance which,
after the chain of the circumstances appearing an accused is
complete, can be added to the said chain to reinforce the guilt
of the accused. (See the decision of Supreme Court reported
as Sharad Birdhichand Sarda v State of Maharashtra AIR 1984
SC 1622.)
64. In view of the above discussion, we do not find any merit
in the appeals which are dismissed.

PRADEEP NANDRAJOG, J.



SURESH KAIT, J.
March 11, 2010
dkb
Crl.Appeal Nos.922 & 904 of 2004 Page 45 of 45