Gauri Shankar And Another vs State of U.P.
- Court
- Allahabad High Court
Reserved
A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 4605 of 2017
Gauri Shankar and another
…..Appellants
Versus
State of U.P.
…..Respondent
Counsel for the Appellants : Dinesh Kumar Verma, Raghuraj
Singh, Rakesh Pati Tiwari, Sushil
Kumar Mishra
Counsel for the Respondent : G.A.
Along with :-
1. Criminal Appeal No. 4606 of 2017
Sudhakar
Versus
State of U.P.
Court No. - 2
HON'BLE J.J. MUNIR, J.
HON'BLE SAURABH SRIVASTAVA, J.
(Delivered by Hon'ble J.J. Munir, J.)
1. By this judgment, we propose to decide Criminal Appeal
No.4605 of 2017 and Criminal Appeal No.4606 of 2017.
2. Whereas Sudhakar, the appellant in Criminal Appeal
No.4606 of 2017, and Gauri Shankar, appellant No.1 in Criminal
Appeal No.4605 of 2017, stood their trial vide Sessions Trial
No.194 of 2015 for the offences punishable under Sections 498-A,
304-B, 302, 323 read with Section 34 of the Indian Penal Code,
1860 (for short, 'IPC') and Section 3/4 of the Dowry Prohibition
Act, 1961 (for short, 'DP Act'), appellant No.2 in Criminal Appeal
No.4605 of 2017, Smt. Munni Devi stood her trial on the selfsame
2
CRLA No. - 4605 of 2017
charges vide Sessions Trial No.291 of 2015. Both the sessions
trials arose out of Case Crime No.191 of 2015, under Sections
498-A, 304-B, 302, 323 IPC and Section 3/4 DP Act, Police
Station Bakewar, District Etawah, and, were, therefore,
consolidated and tried together by Mr. Umesh Chandra Pandey,
the then Additional District and Sessions Judge, Fast Track Court
No.1, Etawah. The learned Additional Sessions Judge, by means
of the impugned judgment and order dated 22.07.2017, has
convicted all the three appellants, who have preferred the two
appeals aforesaid of the offence punishable under Section 302/34
IPC and sentenced each of them to suffer imprisonment for life,
besides imposing a fine of Rs.20,000/- upon each of them.
3. The first informant, Kishan Babu, lodged a written report
with the Station House Officer, P.S. Bakewar, District Etawah
dated 10.05.2015, saying that he had married his daughter on
28.06.2012 to Sudhakar son of Gauri Shankar, a resident of
Village Tadwa Kachhiyan, P.S. Bakewar, District Etawah. In the
marriage, he had given away to the newly weds a sum of Rs. 3
lacs in cash, besides movables worth Rs.1.50 lacs. In addition, he
had also given his daughter a ring besides earrings and a chain.
Shortly after marriage, her daughter's husband Sudhakar, mother-
in-law Munni Devi, father-in-law Gauri Shankar, brother-in-law
(jeth) Pratap Singh and sister-in-law (nanad) Neeti and others
without rhyme or reason, commenced indulging in physical
violence. They would beat up his daughter and demand rupees
one lac in cash, besides a Pulsar motorcycle. The informant said
that his daughter complained to him in the matter a number of
times over and also said that her husband Sudhakar would come
back home in the evening drunk. She also said that in that
inebriated state, he would beat her up and demand money
besides the motorcycle. The informant goes on to say that in this
connection, he spoke to the appellant Gauri Shankar on a number
of occasions and also convened a panchayat. Next, Gauri
3
CRLA No. - 4605 of 2017
Shankar, in retaliation to the panachayat, threatened his daughter
a number of times. The informant goes on to say that he brought
in the mediator, who had settled the marriage, one Virendra
Singh, informing him of the matter, but Sudhakar, his parents,
brother and sister, would not relent as they had become slaves to
th
their habit. On the 8 of May, 2015 at about 11 o'clock, he
received a call on his mobile No. 9897924296 from mobile No.
7409697499, where his daughter Preeti called him to say that he
should rush to her place and take her away because her in-laws
were beating her up and were going to lock her up in a room in
order to do her to death. The informant says that he told her
daughter not to loose her nerve and that he would soon be there.
While this conversation was going on, the phone was
disconnected. The informant, thereupon, along with his brother
Lakhan Singh and another Satya Prakash, a total of three men,
rode a motorcycle to his daughter's place, reaching there by 2
o'clock. There, he saw that the inmates of the house, upon seeing
him, avoided him. The informant entered the house and saw that
his daughter was lying dead. She had injuries to her neck and
arms and her face had yellowish marks. Upon seeing the
informant, all the inmates of the house deserted the place. In the
meantime, Nanak @ Sahbeer, Suresh Chandra and Abhay Ram,
natives of his village, reached there and it was in their company
that he proceeded to Aheripur Police Chowki. The Police there
told him to go to Bakewar or Etawah. He called the Police on
Number 100 Facility and then made a call to the Superintendent
of Police on mobile No. 9454401043. He got a reply from the S.P.
that he should proceed to the place of occurrence and the Police
would reach there. The Police arrived by 7 o'clock in the evening
and took away the dead body. The report requests the registration
of a case and necessary proceedings.
4. On the basis of the aforesaid report, a case was registered
by the Police, being Crime No.191 of 2015, under Sections 498-A,
4
CRLA No. - 4605 of 2017
323, 304-B IPC and Section 3/4 DP Act, Police Station Bakewar,
District Etawah. The check FIR, that was drawn up, shows that
the crime was registered on 10.05.2015 at 11.30 a.m. The
distance of the police station is shown to be nine kilometers from
the place of occurrence.
5. A Tehsildar, on the instructions of the Sub-Divisional Officer,
held inquest with the assistance of a Sub-Inspector of Police on
09.05.2015 at the mortuary, where the dead body was retained.
6. The dead body of the deceased was subjected to autopsy
on 09.05.2015 at 2.00 p.m. The autopsy report is on record as Ex.
Ka-13. The doctor, on external examination, found the following
antemortem injuries:
(1) Ligature mark present continuously horizontal about 29.0 x 1.0 in
neck below the thyroid. The base of the groove soft & reddish.
Subcutaneous tissue under the mark ecchymosed.
(2) Contusion 6.0 x 0.5 cm Lt. are just below shoulder joint laterally.
(3) Contusion 6.0 x 4.0 cm on Rt. side of abdomen just lateral to
umbilicus.
(4) Multiple contusions Rt. lower limb.
(5) Contusion 5.0 x 4.0 cm Rt. hip.
(6) Contusion 7.0 x 4.0 cm Lt. hip laterally.
(7) Contusion 6.0 x 5.0 cm Lt. thigh just above popliteal fossa.
The cause of death opined by the autopsy doctor in the
postmortem report is asphyxia due to strangulation. The hyoid
bone was found fractured on the right side.
7. The Investigating Officer investigated the case and
submitted two charge-charges, viz: one dated 24.06.2015 against
Sudhakar and Gauri Shankar and the other dated 20.10.2015
against Pratap Singh, Smt. Munni Devi and Smt. Neeti. The
appellants were produced before the learned Magistrate, who
took the cognizance and furnished them copies of the relevant
prosecution papers as provided under Section 207 Cr.P.C.
5
CRLA No. - 4605 of 2017
Thereafter, the case against the appellants Sudhakar and Gauri
Shankar was committed to the Court of Sessions for trial on
22.07.2015 and on 10.11.2015 against the appellant Munni Devi,
besides the two co-accused Pratap Singh and Neeti.
8. Mr. Gajendra Singh, the then Additional Sessions Judge,
Court No.4, Etawah, proceeded to frame charges against the
appellants Sudhakar and Gauri Shankar together vide order dated
14.09.2015, numbering four, to wit, firstly, under Section 498-A
IPC; secondly, under Section 304-B IPC and alternatively under
Section 302 IPC; thirdly, under Section 323 read with Section 34
IPC; and, fourthly, under Section 3/4 DP Act. Charges against the
appellant, Munni Devi, were also framed by Mr. Gajendra Singh,
the then Additional Sessions Judge, Court No.4, Etawah on
02.01.2016 along with the co-accused Pratap Singh and Neeti
jointly on like counts as the appellants Sudhakar and Gauri
Shankar.
9. The prosecution examined the following witnesses in
support of their case:
1. PW-1 – Kishan Babu, father of the deceased and the
informant of the case,
2. PW-2 – Manoj Kumar, brother of the deceased,
3. PW-3 – Vineet Devi, sister-in-law (bhabhi) of the
deceased,
4. PW-4 – Lakhan Singh, uncle of the deceased,
5. PW-5 – Satya Prakash, a native of the informant's
village,
6. PW-6 – Virendra Kumar, mediator of the marriage,
7. PW-7 – Suresh Chandra, a native of the informant's
village,
8. PW-8 – Abhay Ram, a native of the informant's village,
9. PW-9 – Jitendra Kumar, another brother of the
deceased,
6
CRLA No. - 4605 of 2017
10. PW-10 – Lady Constable 526 Kalpana Devi, who
scribed of the check FIR and made other relevant entries,
11. PW-11 – Dr. Sanjiv Kumar, who conducted postmortem
of the deceased,
12. PW-12 – Shiv Narain Pandey, the then Naib Tehsildar,
Bharthana, District Etawa, who got prepared the inquest.
10. The prosecution produced the following documentary
evidence:
Sr.
No.
Exhibit No. Exhibited documents with brief particulars
1 Ex. Ka-1 Written report lodged with Police Station Bakewar,
District Etawah, proved by PW-1, Kishan Babu
2 Ex. Ka-2 Charge sheet dated 24.06.2015 submitted against
Sudhakar and Gauri Shankar
3 Ex. Ka-3 Check FIR dated 10.05.2015, proved by PW-10, Lady
Constable Kalpana Devi
4 Ex. Ka-4 Site-plan of the place of occurrence dated 10.05.2015
5 Ex. Ka-5 Carbon Copy of GD Entry No.14 Time 09.05 hours
dated 14.09.2015
6 Ex. Ka-6 Recovery memo dated 10.05.2015 taking into
possession marriage card of the deceased
7 Ex. Ka-7 Report of the Forensic Science Laboratory dated
08.05.2015
8 Ex. Ka-8 Inquest report dated 09.05.2015, proved by PW-12,
Shiv Narain Pandey
9 Ex. Ka-9 Letter to the C.M.O. dated 09.05.2015, proved by
PW-12, Shiv Narain Pandey
10 Ex. Ka-10 Letter to the R.I. dated 09.05.2015, proved by PW-12,
Shiv Narain Pandey
11 Ex. Ka-11 Photo Lash dated 09.05.2015, proved by PW-12, Shiv
Narain Pandey
12 Ex. Ka-12 Challan Lash dated 09.05.2015, proved by PW-12,
Shiv Narain Pandey
13 Ex. Ka-13 Postmortem Report of the deceased dated 09.05.2015,
proved by PW-11, Dr. Sanjiv Kumar
14 Ex. Ka-14 Charge sheet dated 20.10.2015 submitted against
Pratap Singh, Smt. Munni Devi and Smt. Neeti
15 Ex. Ka-15 Carbon Copy of GD Entry No.16 Time 11.30 hours
dated 10.05.2015, proved by PW-10, Lady Constable
Kalpana Devi
11. After the prosecution evidence was over, the statements of
the three appellants were recorded under Section 313 Cr.P.C. on
21.07.2016 and their supplementary statements were recorded
under Section 313 Cr.P.C. on 06.07.2017.
7
CRLA No. - 4605 of 2017
12. The learned Trial Judge vide the judgment and order
impugned proceeded to acquit the co-accused Pratap Singh and
Smt. Neeti of the offences under Sections 498-A, 304-B, 302,
323/34 IPC and Section 3/4 DP Act, extending to them the benefit
of doubt. However, the appellants, Sudhakar, Gauri Shankar and
Smt. Munni Devi, were convicted of the offence under Section
302/ 34 IPC on the basis of circumstantial evidence. They were,
however, acquitted of the charges under Sections 498-A, 304-B,
323/34 IPC and Section 3/4 DP Act. All the three appellants, as
already said, were sentenced to suffer imprisonment for life,
besides being imposed with a fine of Rs.20,000/- each.
13. Aggrieved, these appeals have been preferred.
14. Heard Mr. Rakesh Pati Tiwari, learned Counsel for the
appellant and Mr. Shashi Shekhar Tiwari, learned Additional
Government Advocate appearing on behalf of the State and
perused the record.
15. Now, this is a case which was reported to the Police by the
deceased's father through a written information that was lodged
with the Police on 10.05.2015 at 11.30 a.m. Admittedly, the
incident had happened on 08.05.2015 at 11.00 a.m. The Police
had got information of the crime before the formal registration of
the FIR with the deceased's father, PW-1, calling the Dial 100
facility and then reaching the Superintendent of Police over
telephone, who detailed the Police to immediately reach the place
of occurrence. The inquest in this case was held on 09.05.2015,
as would appear from Ex. Ka-8, and the autopsy too was done on
09.05.2015, a fact which Ex. Ka-3 demonstrates in ample
measure. The FIR was lodged after the Police were already in
know of the crime and had taken substantial steps by holding the
inquest and causing the autopsy to be done. The FIR came to be
registered, as already said, on 10.05.2015 at 11.30 a.m., a fact
evident from a perusal of Ex. Ka-3.
8
CRLA No. - 4605 of 2017
16. During investigation, the statements of a number of
witnesses for the prosecution were recorded under Section 161
Cr.P.C. They supported the prosecution case of a dowry demand
by the deceased's in-laws and then the case of the in-laws doing
her to death by throttling her. It must be remarked that none of the
witnesses in this case are eye-witnesses. Some of them, like the
first informant, PW-1, or the deceased's brother, PW-2, Manoj
Kumar, may be witnesses of some relevant facts, particularly res
gestae, but none of them have seen the occurrence. Therefore,
we do not have an eye-witness account. It is a case that ultimately
turns upon circumstantial evidence. The unfortunate part of the
case is that nine witnesses of fact have been examined, where a
number of them are blood relatives of the deceased, but they
have turned hostile in the dock evidence. Therefore, some of the
relevant facts, that could have come in evidence of these
witnesses, have been lost to hostility.
17. The first informant, who is the deceased's father and
testified during trial as PW-1, has disowned the FIR by the most
unconvincing explanation about his act in lodging the FIR with all
its contents, accusing the appellants, as also his conduct in
frantically contacting the Police by reaching the Dial 100 facility as
well as the Superintendent of Police, all of which ultimately led to
the arrival of the Police at the scene of crime. It is rather odd that
the Police, upon reaching the scene of crime and finding the dead
body of a young daughter-in-law in the matrimonial home, did not
take down an oral information or ask for a written report from
PW-1 or whoever was willing to report and promptly register an
FIR in the gruesome crime before embarking upon their
investigation. They commenced investigation by causing the dead
body to be removed to the morgue, where they held the inquest
and then caused the autopsy to be done, much before the FIR,
giving rising to the crime, was registered. Ideally, these steps
should have been taken after the registration of a prompt FIR, on
9
CRLA No. - 4605 of 2017
the basis of an oral or written information from the relatives of the
deceased, who were present or whoever was willing to report. We
say this for the reason that this was not a case where a dead
body was found in an unknown place with no clue about the
cause of the unnatural death. It is invariably in such cases that an
inquest has to be done promptly without awaiting the registration
of a crime.
18. The other lapse, which is apparent on the part of the Police,
is that they did not hold the inquest at the place where the body
was found, that is to say, the deceased's in-laws' house. An
inquest should be held wherever the body is found and not in the
manner done here, that is to say, by first dispatching the body to
the morgue and then holding the inquest there, away from the
place of occurrence, where the deceased's body was found lying,
that is to say, her matrimonial home. The prosecution witnesses of
fact, who are mostly blood relatives of the deceased, as already
remarked, and have testified in the dock as PW-1 to PW-9, have
not at all supported the prosecution case. Quite apart, the
prosecution witnesses of fact, if they had faithfully testified, could
have proved some relevant facts, that would add to the chain of
circumstances, cited by the prosecution to bring home the charge.
There is no manner of doubt that given the state of things in this
case, it is a case that primarily rests on circumstantial evidence.
The testimony of the prosecution witnesses 1 to 9 could only have
added to proof, may be of a few of the circumstances, on which
the prosecution wish to rely. Therefore, with the witnesses turning
hostile, all that has happened is the failure of proof of some
relevant facts or circumstances; nothing more.
19. This being a case of circumstantial evidence, the standard,
by which evidence has to be evaluated, is well-known. In a case
of circumstantial evidence, the law requires the prosecution to
establish circumstances that form so complete a chain that there
10
CRLA No. - 4605 of 2017
is no other inference possible, but one consistent with the guilt of
the accused. Anything lesser is not acceptable and would entitle
the accused to the benefit of doubt. The five principles, by which a
case of circumstantial evidence can alone be established, have
been summarized by the Supreme Court in Sharad Birdhichand
Sarda v. State of Maharashtra, (1984) 4 SCC 116, where it has
been held:
“ 153. A close analysis of this decision would show that
the following conditions must be fulfilled before a
case against an accused can be said to be fully
established:
( 1 ) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may
be” established. There is not only a grammatical but a
legal distinction between “may be proved” and “must be
or should be proved” as was held by this Court in
Shivaji Sahabrao Bobade v. State of Maharashtra [(1973)
2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783]
where the observations were made: [SCC para 19, p. 807:
SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the
accused must be and not merely may be guilty before a
court can convict and the mental distance between
‘may be’ and ‘must be’ is long and divides vague
conjectures from sure conclusions.”
( 2 ) the facts so established should be consistent
only with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on any
other hypothesis except that the accused is guilty,
( 3 ) the circumstances should be of a conclusive
nature and tendency,
( 4 ) they should exclude every possible hypothesis
except the one to be proved, and
( 5 ) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based
on circumstantial evidence."
20. There is one feature to this case, which is commonplace in
homicides suffered by women in their matrimonial homes. That
oft-occurring feature in such cases is that there are hardly eye-
11
CRLA No. - 4605 of 2017
witnesses of the occurrence because in the nature of things, the
terminal violence takes place in the four-corners of the husband's
place, where more often than not the unfortunate victim has
neither a relative nor a friend nor a person of such high moral fiber
that he or she would speak out the truth, though related to the
accused by blood or unconnected to both of them, say a trusted
servant of the victim's in-laws. Therefore, in cases that are not
dowry deaths, as defined under Section 304-B IPC, the
prosecution is not relieved of their burden by any kind of a
reversal thereof upon the establishment of certain facts. If it is a
case where the charge to be considered is one of murder,
punishable under Section 302 IPC, pure and simple, the
prosecution would have to establish the case by circumstances
beyond reasonable doubt. Section 106 of the Evidence Act also
does not come to the rescue of the prosecution in the matter of
discharging their overall burden proving the accused's guilt. All
that Section 106 comes in handy in such a situation is that after
the prosecution have sufficiently established facts and there are
blind spots, that are known to the accused alone, and facts
regarding these have to be within their special knowledge, a
limited burden to explain those facts, consistent with their
innocence in the sense of an evidential burden, would shift to the
accused. If the accused can offer a good explanation supported
by reasonable evidence, explaining facts especially within their
knowledge, consistent with their innocence, that is all that the
accused may have to do about it. If, however, the accused fail to
offer a cogent explanation for a fact that is inculpatory and
especially within their knowledge, it would be added to the chain
of circumstances appearing against him. The aforesaid principle is
elucidated by the Supreme Court in Balvir Singh v. State of
Uttarakhand, (2023) 16 SCC 575, where it has been held:
“ 35. Section 106 of the Evidence Act referred to above
provides that when any fact is especially within the
knowledge of any person, the burden of proving that
12
CRLA No. - 4605 of 2017
fact is upon him. The word “especially” means facts
that are pre-eminently or exceptionally within the
knowledge of the accused. The ordinary rule that
applies to the criminal trials that the onus lies on
the prosecution to prove the guilt of the accused is
not in any way modified by the rule of facts embodied
in Section 106 of the Evidence Act. Section 106 of the
Evidence Act is an exception to Section 101 of the
Evidence Act. Section 101 with its Illustration ( a )
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 the facts which are,
“especially within the knowledge of the accused and
which, he can prove without difficulty or
inconvenience”.
36. In Shambu Nath Mehra v. State of Ajmer [ Shambu Nath
Mehra v. State of Ajmer , 1956 SCC OnLine SC 27 : AIR
1956 SC 404] , this Court while considering the word
“especially” employed in Section 106 of the Evidence
Act speaking through Vivian Bose, J., observed as under
: (SCC OnLine SC para 9)
“ 9 . … 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. R. [ Attygalle v. R. , 1936 SCC OnLine
PC 20 : AIR 1936 PC 169 (AIR V 23)] and Stephen
Seneviratne v. R. [ Stephen Seneviratne v. R. , 1936
SCC OnLine PC 57 : (1936) 3 All ER 36 at 49] ”
(emphasis in original)
37. The aforesaid decision of Shambu Nath [ Shambu Nath
Mehra v. State of Ajmer , 1956 SCC OnLine SC 27 : AIR
1956 SC 404] has been referred to and relied upon in
Nagendra Sah v. State of Bihar [ Nagendra Sah v. State
of Bihar , (2021) 10 SCC 725 : (2022) 1 SCC (Cri) 127] ,
wherein this Court observed as under : (SCC pp. 734-35,
paras 22-23)
“ 22 . Thus, Section 106 of the Evidence Act will apply
to those cases where the prosecution has succeeded in
establishing the facts from which a reasonable
inference can be drawn regarding the existence of
certain other facts which are within the special
knowledge of the accused. When the accused fails to
offer proper explanation about the existence of said
other facts, the court can always draw an appropriate
inference .
13
CRLA No. - 4605 of 2017
23 . When a case is resting on circumstantial
evidence, if the accused fails to offer a reasonable
explanation in discharge of burden placed on him by
virtue of Section 106 of the Evidence Act, such a
failure may provide an additional link to the chain
of circumstances. In a case governed by
circumstantial evidence, if the chain of
circumstances which is required to be established by
the prosecution is not established, the failure of
the accused to discharge the burden under Section 106
of the Evidence Act is not relevant at all. When the
chain is not complete, falsity of the defence is no
ground to convict the accused .”
(emphasis supplied)
38. In Tulshiram Sahadu Suryawanshi v. State of
Maharashtra [ Tulshiram Sahadu Suryawanshi v. State of
Maharashtra , (2012) 10 SCC 373 : (2013) 1 SCC (Cri)
193] , this Court observed as under : (SCC pp. 381-82,
para 23)
“ 23 [ Ed. : Para 23 corrected vide Official
Corrigendum No. F.3/Ed.B.J./58/2012 dated 9-10-
2012.]. It is settled law that 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 reaches a logical conclusion
as the most probable position. The above position is
strengthened in view of Section 114 of the Evidence
Act, 1872. It empowers the court to presume the
existence of any fact which it thinks likely to have
happened. In that process, the courts shall have
regard to the common course of natural events, human
conduct, etc. in addition to the facts of the case.
In these circumstances, the principles embodied in
Section 106 of the Evidence Act can also be utilised.
We make it clear that this section is not intended to
relieve the prosecution of its burden to prove the
guilt of the accused beyond reasonable doubt, but it
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 . It is useful to quote the
following observation in State of W.B. v. Mir
Mohammad Omar [ State of W.B. v. Mir Mohammad Omar ,
(2000) 8 SCC 382 : 2000 SCC (Cri) 1516] : (SCC p.
393, para 38)
‘ 38 . Vivian Bose, J., had observed [ Shambu Nath
Mehra v. State of Ajmer , 1956 SCC OnLine SC 27 :
AIR 1956 SC 404] that Section 106 of the Evidence
Act is designed to meet certain exceptional cases
in which it would be impossible for the prosecution
to establish certain facts which are particularly
within the knowledge of the accused. In Shambu Nath
Mehra v. State of Ajmer [ Shambu Nath Mehra v. State
of Ajmer , 1956 SCC OnLine SC 27 : AIR 1956 SC 404]
the learned Judge has stated the legal principle
thus : (SCC OnLine SC para 9)
14
CRLA No. - 4605 of 2017
“ 9 . This lays down the general rule that in a
criminal case the burden of proof is on the
prosecution and Section 106 is certainly not
intended to relieve it of that duty. On the
contrary, it is designed to meet certain
exceptional cases in which it would be
impossible, or at any rate disproportionately
difficult for the prosecution to establish facts
which are “especially” within the knowledge of
the accused and which he could prove without
difficulty or inconvenience.
The word “especially” stresses that. It means facts
that are pre-eminently or exceptionally within his
knowledge.” ’ ”
(emphasis in original and supplied)
39. In Trimukh Maroti Kirkan v. State of Maharashtra
[ Trimukh Maroti Kirkan v. State of Maharashtra , (2006)
10 SCC 681 : (2007) 1 SCC (Cri) 80] , this Court was
considering a similar case of homicidal death in the
confines of the house. The following observations are
considered relevant in the facts of the present case :
(SCC pp. 690-91 & 694, paras 14-15 & 22)
“ 14. 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 Prosecutions
[ Stirland v. Director of Public Prosecutions , 1944 AC
315 (HL)] — quoted with approval by Arijit Pasayat,
J. in State of Punjab v. Karnail Singh [ State of
Punjab v. Karnail Singh , (2003) 11 SCC 271 : 2004 SCC
(Cri) 135] .) 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 travelling on a railway
without ticket. The burden of proving that he had a
ticket is on him.’
15. 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
15
CRLA No. - 4605 of 2017
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.
*
22. Where an accused is alleged to have committed the
murder of his wife and the prosecution succeeds in
leading evidence to show that shortly before the
commission of crime they were seen together or the
offence takes place in the dwelling home where the
husband also normally resided, it has been
consistently held that if the accused does not offer
any explanation how the wife received injuries or
offers an explanation which is found to be false, it
is a strong circumstance which indicates that he is
responsible for commission of the crime .”
(emphasis supplied)
40. The question of burden of proof, where some facts
are within the personal knowledge of the accused, was
examined by this Court in State of W.B. v. Mir Mohammad
Omar [ State of W.B. v. Mir Mohammad Omar , (2000) 8 SCC
382 : 2000 SCC (Cri) 1516] . In this case, the
assailants forcibly dragged the deceased from the house
where he was taking shelter on account of the fear of
the accused, and took him away at about 2.30 in the
night. The next day in the morning, his mangled body
was found lying in the hospital. The trial court
convicted the accused under Section 364 read with
Section 34IPC, and sentenced them to ten years'
rigorous imprisonment. The accused preferred an appeal
against their conviction before the High Court and the
State also filed an appeal challenging the acquittal of
the accused for the charge of murder. The accused had
not given any explanation as to what happened to the
deceased after he was abducted by them. The Sessions
Judge, after referring to the law on circumstantial
evidence, had observed that there was a missing link in
the chain of evidence after the deceased was last seen
together with the accused persons, and the discovery of
the dead body in the hospital, and concluded that the
prosecution had failed to establish the charge of
murder against the accused persons beyond any
reasonable doubt. This Court took note of the
provisions of Section 106 of the Evidence Act, and laid
down the following principles in paras 31 to 34 of the
report : ( Mir Mohammad Omar case [ State of W.B. v. Mir
Mohammad Omar , (2000) 8 SCC 382 : 2000 SCC (Cri)
1516] , SCC p. 392)
“ 31 . 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
16
CRLA No. - 4605 of 2017
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 .
32. In this case, when the 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 conditions such as this .
33 . 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 reaches 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
the court shall have regard to the common course of
natural events, human conduct, etc. in relation to
the facts of the case.
34 . 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 the accused would tell the Court what
else happened to Mahesh at least until he was in
their custody.”
(emphasis supplied)
41. Applying the aforesaid principles, this Court in
Mir Mohammad Omar case [ State of W.B. v. Mir Mohammad
Omar , (2000) 8 SCC 382 : 2000 SCC (Cri) 1516] while
maintaining the conviction under Section 364 read with
Section 34IPC, reversed the order of acquittal under
Section 302 read with Section 34IPC, and convicted the
accused under the said provision and sentenced them to
imprisonment for life.
42. Thus, from the aforesaid decisions of this Court,
it is evident that the court should apply Section 106
of the Evidence Act in criminal cases with care and
caution. It cannot be said that it has no application
to criminal cases. The ordinary rule which applies to
criminal trials in this country that the onus lies on
the prosecution to prove the guilt of the accused is
not in any way modified by the provisions contained in
Section 106 of the Evidence Act.
17
CRLA No. - 4605 of 2017
43. Section 106 cannot be invoked to make up the
inability of the prosecution to produce evidence of
circumstances pointing to the guilt of the accused.
This section cannot be used to support a conviction
unless the prosecution has discharged the onus by
proving all the elements necessary to establish the
offence. It does not absolve the prosecution from the
duty of proving that a crime was committed even though
it is a matter specifically within the knowledge of the
accused and it does not throw the burden of the accused
to show that no crime was committed. To infer the guilt
of the accused from absence of reasonable explanation
in a case where the other circumstances are not by
themselves enough to call for his explanation is to
relieve the prosecution of its legitimate burden. So,
until a prima facie case is established by such
evidence, the onus does not shift to the accused.
44. Section 106 obviously refers to cases where the
guilt of the accused is established on the evidence
produced by the prosecution unless the accused is able
to prove some other facts especially within his
knowledge which would render the evidence of the
prosecution nugatory. If in such a situation, the
accused gives an explanation which may be reasonably
true in the proved circumstances, the accused gets the
benefit of reasonable doubt though he may not be able
to prove beyond reasonable doubt the truth of the
explanation. But if the accused in such a case does not
give any explanation at all or gives a false or
unacceptable explanation, this by itself is a
circumstance which may well turn the scale against him.
In the language of Prof. Glanville Williams:
“All that the shifting of the evidential burden does
at the final stage of the case is to allow the jury
(Court) to take into account the silence of the
accused or the absence of satisfactory explanation
appearing from his evidence.””
21. The foremost circumstance that appears in this case is the
disowned FIR. Though PW-1 has said that he did sign the written
information, on the basis of which the FIR was registered, he has
disowned its contents by saying that some men from his village
got an application typed out, whereon they had his signatures
affixed. They did not read out its contents to him. The FIR was
lodged two days after the occurrence on 10.05.2015. It is not a
case where at the contact point with tragedy when the first
informant, PW-1, was out of his senses, somebody wrote out a
script and made him sign it. In the space of 48 hours, it is difficult
to believe that the contents of the FIR were ones where the
informant's mind did not accompany his signatures. Apparently,
the FIR was lodged after the inquest and autopsy were all over.
18
CRLA No. - 4605 of 2017
Therefore, the FIR, though one which can be castigated as the
product of afterthought and premeditation, is certainly not a
document that may be disowned for its contents by the first
informant on the pretext that he signed it without reading or
understanding the contents in a moment of great distress. The
FIR, though not a substantive piece of evidence, is certainly the
earliest account of the occurrence, which has its own evidentiary
value. The circumstance, that PW-1 within two days of the
occurrence nominated the appellants, besides the two other co-
accused, as perpetrators of the crime, is certainly very relevant
notwithstanding his hostility in the dock evidence.
22. The second most important circumstance appearing against
the appellants is that the victim died an unnatural death within the
four-walls of her matrimonial home, suffering as many as seven
injuries with a continuous horizontal ligature mark, the cause of
death being medically opined to be ‘asphyxia due to
strangulation’. The learned Counsel for the appellants about this
circumstance has argued that the autopsy doctor in his cross-
examination has said that in case of hanging a ligature mark is
there, and in cases involving hanging, death occurs as a result of
oxygen supply being cutoff. In Hindi, the relevant evidence reads:
Hanging vale cases me dam ghutne se maut hoti hai. The learned
Counsel for the appellants has urged that it is, therefore, not
conclusively proved that the deceased was strangulated to death
by someone else. She could have well died as a result of hanging.
Unfortunately, for the appellants, the doctor in the autopsy report
has clearly opined the case to be one of death, as a result of
asphyxia due to ante-mortem strangulation. Moreover, the ligature
mark is continuously horizontal about 29.0 x 1.0 cm in the neck
below the thyroid. In the base of the groove, soft and reddish
subcutaneous tissue under the mark is ecchymosed. The hyoid
bone is fractured on the right side. The general appearance of the
dead body showed at the time of autopsy a protruded tongue and
19
CRLA No. - 4605 of 2017
the eyes bulged out. In addition to the injury to the neck, there are
six other injuries, already noted, all of which are contusions on the
right lower limb, right hip, left hip and the left thigh, besides one
on the abdomen and still another on the shoulder joint.
23. In the celebrated treatise on Medical Jurisprudence – A
th
Textbook of Medical Jurisprudence and Toxicology by Modi, 24
Edition, published by Lexis Nexis, Butterworths Wadhwa, a
comparative study of the postmortem presentation of injuries and
other medical features in cases of hanging and strangulation is to
be found at Page 456 (Chapter 19). The comparative study is
important and reproduced here:
Hanging Strangulation
1 Mostly suicidal. 1 Mostly homicidal.
2 Face–Usually pale and petechiae rare. 2 Face–Congested, livid and marked
with petechiae.
3 Saliva–Dribbling out of the mouth down
3 Saliva–No such dribbling.
on the chin and chest.
4 Neck–Stretched and elongated in fresh
4 Neck–Not so.
bodies.
5 External signs of asphyxia, usually not
5 External signs of asphyxia, very
well marked.
well marked (minimal if death due
to vasovagal and carotid sinus
effect).
6 Ligature mark–Oblique, non-continuous
6 Ligature mark–Horizontal or
placed high up in the neck between the
chin and the larynx, the base of the
groove or furrow being hard, yellow and
parchment-like.
transverse continuous, round the
neck, low down in the neck below
the thyroid, the base of the groove
or furrow being soft and reddish.
7 Abrasions and ecchymoses round about
7 Abrasions and ecchymoses round
the edges of the ligature mark, rare.
about the edges of the ligature
mark, common.
8 Subcutaneous tissues under the mark–
8 Subcutaneous tissues under the
White, hard and glistening.
mark–Ecchymosed.
9 Injury to the muscles of the neck–Rare. 9 Injury to the muscles of the neck–
Common.
10 Carotid arteries, internal coats ruptured
10 Carotid arteries, internal coats
in violent cases of a long drop.
ordinarily ruptured.
11 Fracture of the larynx and trachea– Very
11 Fracture of the larynx trachea and
rare and may be found that too in
judicial hanging.
hyoid bone
12 Fracture-dislocation of the cervical
12 Fracture-dislocation of the cervical
vertebrae–Common in judicial hanging.
vertebrae–Rare.
13 Scratches, abrasions and bruises on the
13 Scratches, abrasions fingernail
face, neck and other parts of the body–
Usually not present.
marks and bruises on the face, neck
and other parts of the body–
Usually present.
14 No evidence of sexual assault. 14 Sometimes evidence of sexual
assault.
15 Emphysematous bullae on the surface of
15 Emphysematous bullae on the
the lungs–Not present.
surface of the lungs–May be
present.
20
CRLA No. - 4605 of 2017
24. In addition about the inference about strangulation from a
hyoid bone fracture, the following opinion is expressed by Modi at
Page 462 of the treatise:
“The hyoid is the U-shaped bone of the neck that is fractured in one-third of all
homicides by strangulation. On this basis, postmortem detection of hyoid fracture
is relevant to the diagnosis of strangulation.”
25. A look at the postmortem report in this case would show, as
already noticed, that the ligature mark is 'continuously horizontal'.
In cases of hanging, the ligature mark is oblique, non-continuous
and placed high up in the neck between the chin and the larynx,
as the comparative study with cases of strangulation would show
(supra). Similarly, in cases of strangulation, the ligature mark is
horizontal or transverse continuous, round the neck, low down the
neck below the thyroid and in the base of the groove or furrow, the
tissue is soft and reddish. Here, the ligature mark is below the
thyroid and the base of the groove shows soft and reddish
subcutaneous tissue, which is ecchymosed. This is also typical of
strangulation, where, according to Modi, subcutaneous tissue
under the mark is ecchymosed, as distinguished from hanging,
where it would be white, hard and glistening. Fracture of larynx,
trachea and hyoid bone is also typical of a case of strangulation.
Here, admittedly, the hyoid bone is fractured on the right side. The
doctor's opinion, therefore, in the autopsy, which is clear about a
case of strangulation and has not been materially impeached
during cross-examination, is to be accepted. It is a case of death
on account of ante-mortem asphyxia as a result of strangulation.
26. Above all, considering the wholesome cause of death, it is
evident that the deceased was subjected to much violence before
her death. Apart from the ligature mark to the neck, that accounts
for the fatal injury, there are six other injuries already noticed, all
of which are contusions over various parts of the body, particularly
the limbs. This would show, in our opinion, ante-mortem struggle
21
CRLA No. - 4605 of 2017
and an act of overpowering the deceased before she was done to
death.
27. Therefore, the next circumstance that is firmly established is
that the deceased was violently murdered by an act of throttling
her to death. On the evidence established, the deceased and the
three appellants were the inmates in the house, where she
suffered a fatal assault and died. It has figured in the evidence of
PW-1, by way of a very casual remark, much in contradiction to
the first information version, that he came to know later on that his
daughter had been murdered by miscreants. PW-9, Jitendra
Kumar, who is a brother of the deceased, has also spoken in the
same vein in his examination-in-chief, casually saying that he
came to know later on that his sister was done to death by
miscreants.
28. Now, assuming for a moment that there were some intruder
in the deceased's matrimonial home, who had entered the
premises and murdered the victim. There is no earthly reason why
miscreants would enter the deceased's matrimonial home, unless
they had an intention to commit some offence, like theft, robbery
or dacoity. There is no such case of robbery or dacoity. Assuming
further that miscreants entered the deceased's home with
whatever intention, assaulted and killed her, there is no earthly
reason why the assault would be limited to the deceased alone
and all other inmates would remain unscathed. There could be an
explanation for it in a case of robbery, if the appellants were to say
in their statements under Section 313 Cr.P.C. that the robbers
entered the matrimonial home and were resisted by the deceased
alone, leading to violence and her death. In a situation of the last
mentioned kind, one could think of the other inmates remaining
uninjured. These are hypotheses to analyze and understand the
casual remark in the testimony of PW-1 and PW-9 that they came
22
CRLA No. - 4605 of 2017
to know later on that some unknown miscreants murdered the
victim.
29. The next inculpatory circumstance, therefore, is that in her
matrimonial household comprised of the three appellants and the
deceased, it was the deceased alone, who received violent
injuries, including the one that resulted in her death, with all others
remaining unscathed. Still further is the circumstance that
assuming that on account of an intrusion from outside, say
intruding robbers, the deceased was done to death, it would be
the natural sequence of things that out of the three appellants, her
husband or her father-in-law, would have promptly called the
Police and reported the matter. The Police were after all called by
the deceased's father, PW-1, the first informant. No one from the
deceased's family ever intimated the Police either at the station or
the Dial 100 Facility or by reaching the Superintendent of Police.
This is a circumstance, which is again inculpatory and one link in
the chain of the different circumstances that point a finger to the
guilt of the appellants.
30. Now, that there are an overbearing chain of circumstances,
almost complete, pointing to the guilt of the appellants, where the
deceased passed away in her matrimonial home, in the company
of the appellants, throttled to death with no injury sustained by any
other inmate, say as a result of any intruder's assault, the stage
would have arrived where the appellants would be obliged to
reveal facts especially within their knowledge attending the
deceased's homicidal death.
31. Assuming that the information about the victim's death was
given to PW-1 by her father-in-law, the appellant Gauri Shankar,
there is not a word in his testimony or that of any other witness or
the appellants' explanation under Section 313 Cr.P.C. as to how
the victim met a violent death with a fatal injury of throttling her to
death being established by medical evidence. There were a
23
CRLA No. - 4605 of 2017
number of other injuries too, indicative of violence suffered by the
victim before she passed away. Now, the fact, how the victim met
an unnatural death within the four-walls of her matrimonial home,
is something especially within the knowledge of the appellants.
The appellants having not come up with any explanation either
about the injuries sustained by the deceased, that were
apparently non-fatal or the fatal injury of a continuous ligature
mark around her neck that led to her death on account of
asphyxia as a result of throttling.
32. Given all these circumstances, burden under Section 106 of
the Evidence Act would lie upon the appellants to explain how the
deceased came to be done to death in a most violent manner
within the four corners of her matrimonial home. Absent that
explanation by the appellants, by as much as a hint even in the
statements under Section 313 Cr.P.C., this is a clinching link of
circumstances pointing to the appellants' guilt.
33. The following circumstances appear against the appellants:
(1) The deceased was the daughter-in-law of the
appellants Gauri Shankar and Smt. Munni Devi and the
wife of Sudhakar, the appellant in Criminal Appeal No.
4606 of 2017 and was staying together with the appellants
as part of their household when she died an unnatural and
violent death;
(2) The fact that within two days of the occurrence, the first
informant, PW-1, lodged an FIR, nominating the three
appellants as the perpetrators of the crime and
notwithstanding the appellants disowning its contents,
though admitting his signatures, we have found the FIR to
be a dependable and the earliest account of the
occurrence;
(3) The fact that the victim was murdered within the four
corners of her matrimonial home with the cause of death
established being asphyxia due to strangulation, besides
there being as many as six other injuries on her body
clearly showing ante-mortem violence;
24
CRLA No. - 4605 of 2017
(4) The fact that the superficially narrated story of some
miscreants entering the deceased’s home and murdering
her, that has figured in the evidence of PW-1 and PW-9,
the deceased’s father and brother, both hostile witnesses,
is utterly unbelievable because neither is there any
evidence of a robbery being committed in the deceased’s
matrimonial home nor have the other inmates received any
injuries, which all or some of them would certainly have
received, if some miscreants had intruded in the house to
commit any offence or depredation; and,
(5) the fact that assuming that the victim suffered at the
hands of some intruders in her matrimonial home a violent
death, the appellants who are her close relatives would
have reported the matter to the Police and called them, but
after all it was PW-1, who called the Police and lodged the
FIR.
34. Now, all these circumstances put together, which point a
very definitive finger towards the appellants committing the crime,
the clincher or the last link in the chain of evidence comes from
the fact that what actually happened in the four corners of the
appellants’ home, where the deceased was murdered, is a fact
especially within the appellants’ knowledge. The appellants having
not come forward with an explanation about the circumstances in
which the victim met an unnatural death or was violently murdered
in her matrimonial home, leads to the inescapable conclusion
taken together with the other circumstances in their entirety that it
was the appellants, who did her to death.
35. In the totality of circumstances, we are not inclined to
interfere with the impugned judgment and order of conviction or
the sentences passed upon the appellants by the learned
Additional Sessions Judge.
36. In the result, these appeals fail and are hereby dismissed.
The appellants in Criminal Appeal No. 4605 of 2017, Gauri
Shankar and Smt. Munni Devi are bail. They will surrender before
the learned Chief Judicial Magistrate, Etawah in order to serve out
25
CRLA No. - 4605 of 2017
the sentences awarded to them. In case they do not surrender,
the Chief Judicial Magistrate, Etawah will take coercive steps to
secure their presence and commit them to prison. The appellant
in Criminal Appeal No.4606 of 2017, Sudhakar is in jail. This order
will be communicated to him through the Jail Superintendent
concerned, wherever he is serving, by the Chief Judicial
Magistrate, Etawah.
37. This judgment and order shall be communicated to the Chief
Judicial Magistrate, Etawah by the Registrar (Compliance).
38. Let the lower court records be returned.
(Saurabh Srivastava, J.) (J.J. Munir, J.)
July 01, 2026
Anoop
Digitally signed by :-
ANOOP KUMAR SINGH
High Court of Judicature at Allahabad