IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Ram Khiladi @ Khiladi Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.191/2002) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 19-1-2002 in Sessions Case No.59/2001 passed by Shri R.P. Singh, RHJS, Sessions Judge Sawai Madhopur. Date of Judgment: July 03, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Biri Singh, for the appellant. Mr. Ashvini Kumar Sharma, Public Prosecutor for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Grief and the pain suffered by married woman Guddi did not rise to the lips and find a cry, lies festering in the heart, like a drop of water that did not find its way to the sea but became mixed with a handful of dust and so got burried in the earth. Guddi, within five years of marriage died in the house of her husband Ram Khiladi @ Khiladi (appellant herein). The cause of death was asphyxia as a result of smothering. The appellant was put to trial before learned Sessions Judge Sawai Madhopur, who vide judgment dated December 20, 2002 while acquitting the appellant of the charge under section 498A convicted and sentenced him under Section 302 IPC to suffer imprisonment for life and fine of Rs.5000/-, in default to further suffer simple imprisonment for three months. 2. A written report was handed over at 6.30 PM on July 31, 2001 by Kanhaiya Lal (Pw.1) at Police Station Bahrounda Kala with the averments that his daughter Guddi, who was married to Ram Khiladi, died in her Sasural. Her Jeth came to village Khandar and informed Kanhaiya Lal about the death of Guddi. In the report Kanhaiya Lal prayed to make and enquiry about the death of Guddi. On that report proceedings under Section 176 CrPC were initiated and matter was inquired by SDM Sawai Madhopur. SDM submitted his report and case under section 302 and 498A IPC was registered and investigation commenced. Necessary memos were drawn, statements of witnesses were recorded, appellant was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Sessions Judge Sawai Madhopur. Charges under sections 498A and 302 IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 27 witnesses. In the explanation under Sec.313 CrPC, the appellant claimed innocence. He further stated that Guddi was ill and her treatment was going on and on the day of incident since Guddi was suffering from fever, he had gone to well for washing clothes. On return to home he found that fog was coming from nose and mouth of Guddi. She was taken to hospital where she died during treatment. Three witnesses were examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated above. 3. We have heard the submissions advanced before us by learned counsel for the appellant and learned Public Prosecutor and with their assistance scanned the material on record. 4. There is no ocular version of the incident and the prosecution entirely based its case on circumstantial evidence. The standard of proof required to convict a person on circumstantial evidence is now well established by a series of decisions of Supreme Court. According to that standard the circumstances relied upon in support of conviction must be fully established and the chain of evidence must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime. 5. The court would proceed on the well-known principles in regard to appreciation of the circumstantial evidence in the following terms: 1) There must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 2) Circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. 3) There should be no missing links but it is not that everyone of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. 4) On the availability of two inferences, the one in favour of the accused must be accepted. 5) It cannot be said that prosecution must meet any and every hypothesis put forwarded by the accused however far- fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise. 6. As per prosecution following circumstances are found established against the appellant and they form a complete chain so as not to leave any reasonable ground for the conclusion consistent with the innocence of the appellant:- (i) Death of Guddi was homicidal in nature and she died under abnormal circumstances. (ii) Guddi died within five years of her marriage with the appellant. (iii) After the marriage Guddi was harassed in connection with the demand of dowry by the appellant and she was ousted from her Sasural. (iv) On the assurance of her mother-in-law that appellant will behave properly with her, Guddi came back to her Sasural some eight days prior to the incident. (v) When incident occurred Guddi and the appellant were alone in the house. 7. Coming to first circumstance we find that the death of Guddi was homicidal in nature. As per postmortem report (Ex.P-21) following antemortem injuries were found on the dead body:- “1. Bruise present on upper & lower eyelid & extending upto the upper part of nose on medial side below upto the Rt. maxillary prominence. 2. Bruise present inner & Rt. part of lower lip 1cm x 1cm.” Dr. Bajrang Lal Meena (Pw.21), who performed autopsy on the dead body, opined that cause of death was Asphyxia due to suffocation probably due to smothering. 8. In order to establish that death of Guddi occurred under abnormal circumstances the prosecution examined Dr. Bajrang Lal Meena (Pw.21), Dr.Hemlata Tatwal (Pw.22) and Dr. Mohan Singh Rathore (Pw.23), who conducted autopsy on the dead body. As per their testimony the cause of death was asphyxia as a result of smothering. 9. To prove circumstances (ii), (iii), (iv) and (v), the prosecution examined Kanhaiya Lal (Pw.1), Ramswaroop (Pw.2), Kailash (Pw.3), Mohan (Pw.4) and Panchi (Pw.5). All these witnesses categorically deposed that marriage of Guddi took place with the appellant some five years prior to the incident. Three years after the marriage Gona ceremony was performed and Guddi went to her Sasural. For a period of 12 months, she used to be treated well but thereafter the appellant started harassing her in connection with demand of dowry and three months prior to the incident, father-in- law of Guddi took her to her parental house and left her there. Eight days before the incident mother of appellant came to Guddi's Peehar (parental house) and assured that appellant will not ill treat her in future. In view of this assurance the parents of Guddi allowed her to go with the appellant. Guddi and the appellant resided together in an independent house where Guddi died after eight days. Despite searching cross examination testimony of Kanhaiya Lal, Ram Swaroop, Kailash, Mohan and Panchi could not be shattered. 10. The prosecution is thus able to establish that the offence took place inside the privacy of the house of the appellant and after the initial burden is discharged by the prosecution, corresponding burden under section 106 Evidence Act lies on the appellant to give a cogent explanation as to how the incident occurred. In Trimukh Maroti Kirkan Vs. State of Maharashtra (2006)2 WLC (SC) 673, their Lordships of the Supreme Court in a similar situation indicated thus:- (Paras 12 & 13) “12. 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 vs. Karnail Singh (2003) 11 SCC 271). 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." 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. 13. A somewhat similar question was examined by this Court in connection with Section 167 and 178-A of the Sea Customs Act in Collector of Customs, Madras & Ors. v. D. Bhoormull AIR 1974 SC 859 and it will be apt to reproduce paras 30 to 32 of the reports which are as under : 30. It cannot be disputed that in proceedings for imposing penalties under Clause (8) of Section 167 to which Section 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it - ''all exactness is a fake". El Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case. 31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered - to use the words of Lord Mansfield in Blatch v. Archer (1774) 1 Cowp. 63 at p.65 "according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. 32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he falls to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in 'Law of Evidence', (12th Edn. Article 320, page 291), the "presumption of innocence is, no doubt, presumptio juris; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property", though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice. The aforesaid principle has been approved and followed in Balram Prasad Agrawal v. State of Bihar & Ors. AIR 1997 SC 1830 where a married woman had committed suicide on account of ill-treatment meted out to her by her husband and in-laws on account of demand of dowry and being issueless. 11. The appellant offered false explanation about the death of his wife. According to him she died on account of fits and high fever. The witnesses have been cross examined in this light but the medical evidence adduced by the prosecution has belied the explanation of the appellant and the explanation is found to be untrue. This is additional link in the chain of circumstances to make it complete. The Apex Court in Trimukh Maroti Kirkan Vs. State of Maharashtra (supra) observed in para 16 thus:- “In a case based on circumstantial evidence where no eye-witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 (para 40); State of Maharashtra v. Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of M.P. (1995) 3 SCC 574 (para 4)].” 12. That takes us to the question as to whether the charge under section 302 IPC is established against the appellant or he is guilty under section 304B IPC. 13. Having carefully scanned the evidence adduced at the trial, we find that all the ingredients of Section 304-B IPC are present in the instant case. Section 304-B reads as under:- “304-B (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation.- For the purpose of this sub- section, “dowry” shall have the same meaning as in S.2 of the Dowry Prohibition Act,1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” 14. In State of Andhra Pradesh v. Raj Gopal Asawa [JT 2004(3) SC 560] the Apex Court indicated thus:- (Para 8) “The offence alleged against the respondents is under section 304-B IPC which makes “demand of dowry” itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When Section 304-B refers to “demand of dowry”, it refers to the demand of property or valuable security as referred to in the definition of “dowry” under the Act. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect. It is significant that Section 4 of the Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word “agreement” referred to in section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the respondents seek, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. “Dowry” definition is to be interpreted with the other provisions of the Act including section 3, which refers to giving or taking dowry and section 4 which deals with a penalty for demanding dowry, under the Act and the IPC. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry.” (Emphasis Supplied) 15. Section 113-B of the Evidence Act provides that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. 16. Analysing the words `soon before her death' their Lordships of the Supreme Court in Kamesh Panjiyar Vs. State of Bihar (2005)2 SCC 388, held as under:- “A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that “soon before her death”, the victim was subjected to cruelty or harassment “for or in connection with the demand of dowry”. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of “death occurring otherwise than in normal circumstances”. The expression “soon before her death” is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test as indicated by the said expression both for the proof of an offence of dowry death as well as for raising a presumption under section 113-B of the Evidence Act. A reference to the expression “soon before” used in Section 114 illustration (a) of the Evidence Act is relevant. The determination of the period which can come within the term “soon before” under section 114 illustration (a) is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effects of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.” (Emphasis supplied) 17. As already noticed that the harassment or cruelty meted to the deceased was in connection with demand of money. The medical evidence adduced by the prosecution proved beyond reasonable doubt that death of Guddi was unnatural. Existence of a proximate and live link between the effects of cruelty based on demand of money is not missing. Circumstantial evidence adduced by the prosecution in the instant case establishes the guilt of appellant beyond a reasonable doubt. The plea set up by the appellant that the deceased died because of disease, in the circumstances, wholly unacceptable. However the prosecution failed to prove that the appellant committed murder of deceased therefore the conviction of appellant under section 302 IPC is not sustainable and he can be convicted under section 304B IPC. 18. Now coming to the question of sentence it can be seen that section 304B IPC provides thus:- “Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” 19. Although charge under section 304-B IPC was not framed against appellant but omission to frame charge under section 304-B IPC has not resulted in any failure of justice. In Hira Lal Vs. State (Govt.of NCT) Delhi (2003)8 SCC 80, their Lordships of Supreme Court in a similar situation observed as under:- “Though no charge was framed under section 306 IPC, that is inconsequential. On the facts of the case, even though it is difficult to sustain the