1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.932 of 2007 - - - - Against the judgment of conviction dated 22.9.2006 and order of sentence dated 10.10.2006 passed by Additional Sessions Judge, Fast Track Court-IV, Banka, in Sessions Trial No. 714 of 2005/ Trial No. 47 of 2006. ===================================================== Awadesh Jha @ Awadh Kishore Jha, son of Bhuthan Jha alias Bhutnath Jha, resident of Village Golhatti, P.S. Bounsi, District Banka .... .... Appellant Versus The State Of Bihar .... .... Responden ===================================================== Appearance : For the Appellant : Shri Sanjay Kumar Jha Shri. Rana Pratap Singh For the Respondent : Shri Ajay Mishra, A.P.P. ===================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA ORAL JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) - - - - The solitary appellant Awadesh Jha alias Awadh Kishore Jha was charged of committing offences under Sections 302/201 of the Indian Penal Code by learned Presiding Officer, Fast Track Court-IV, Banka for being tried in Sessions Trial No. 714 of 2005 and by judgment dated 22.9.2006, was found guilty of committing the offences under Sections 304 and 201 of the Indian Penal Cod and was directed to undergo rigorous imprisonment for ten years under Section 304 of the Penal Code by order of sentence passed on 10.10.2006. No separate sentence appears passed by the learned trial Judge against the appellant under Section 201 of the Indian Penal Code. 2. The case was registered on the fardbeyaan of P.W. 2 Shravan Jha, who stated that he was living in Delhi and was earning his livelihood by 2 doing labour and had come to his house on the occasion of Durga Puja. This appellant was residing separately from the informant in a different house and had started taking ganja and liquor ten-fifteen days prior to the occurrence and whenever he came drunk, he used to beat up his children and wife on a regular basis. 3. It was stated that in the night intervening 10.12.2004 and 11.12.2004, the informant woke up to attend to the call of nature and went to the Makhana Bagicha when he found that the dead body of his niece was lying there and blood stained jacket of the present appellant was also lying just by the side of the dead body. The informant further stated that a sari which had been put on by the deceased and which belonged to her mother was also found thrown there. The informant stated that he had a sinking feeling and came to his village and again went inside the house of the present appellant along with Gauri Shankar Jha( P.W. 6) and Awani Kant Jha( not examined) and found that blood was scattered all around the house and he came back and lodged the report. 4. P.W. 5 Raj Kishore Singh, who was the Sub-Inspector of Police, after registering the case, took up the investigation himself and during that course went to inspect the place of occurrence. It was the house of the appellant which had roof of tiles and was also an orchard where the dead body was found. The Investigating Officer stated that he seized the articles as per seizure memos ( Exts. 3 and 3/1) both from the house of the appellant and from the orchard. 5. As may appear from Ext.3, a blood stained spade as also blood stained sickle were recovered from the house of the appellant. In addition to the two weapons, P.W. 5 recovered one red colour Gendra (bed sheet) 3 from the corner of the room which was soaked in blood as also a white colour petticoat which was also stained with blood. The seizure was made in presence of Munna Jha and Pankaj Kumar Yadav. P.W.5 seized and prepared the seizure memo in respect of the blood stained jacket belonging to the appellant, a shawl which was also stained with blood besides a green colour check sari, stained with blood in addition to recovering the handle of spade which was blood stained and prepared seizure memos in presence of the witnesses. He sent the dead body for post-mortem examination and the same was held by P.W. 7 Md. Mustaque Ansari who found the following ante- mortem injuries on the dead body: (i) Amputation of left arm from 7” below the left shoulder. (ii) Amputation of last right leg at 10” on the right knee joint up to ankle 4”( sic). (iii) Body was severed into two parts through abdomen and left lumber vertebra. The stomach was found torn, liver lacerated, left side diaphragm ruptured. Spleen, kidney and uterus were lost and intestine was also partly lost. (iv) Lacerated wound 4”X6” left side face and skull with fracture of mandible, fracture of zygonatic bone, frontal bone, parietal bone. Meninges of brain were found cut and lacerated.” In the opinion of the Doctor, P.W.7, the injuries were caused by sharp edged weapon and cause of death was injury no. 4 which had occurred within 36 hours of the holding of the post-mortem examination. 6. Thus, what appears from the evidence of P.W. 6 was that the deceased Dolly Kumari had been murdered by being butchered in the manner as was noted by P.W.7, the Doctor. It also appears from the evidence of P.W. 5, the Investigating Officer, that the room of the house of the appellant, which was inspected by P.W. 5 was splashed with blood and the bed sheet, i.e., Gendra and some other clothes were soaked with 4 blood, thus, indicating that the deceased was murdered in the house of the appellant. 7. The informant of the case P.W. 2, has stated on the conduct of the appellant. P.W. 2 was stating that the appellant was restlessly roaming around wearing a very peculiar cloth. He was always drank and was moving as if he were insane. It was stated by P.W. 2 that he had gone to his Sasural and when he reached near Village Bansi at about 7 A.M. he was informed that the present appellant had killed his daughter and getting that news he got restless and went to the police Station to lodged his fardbeyan. P.W. 3 was declared hostile as was the case with P.W. 4. 8. Thus, what appears from the evidence is that Dolly Kumari was killed and before being killed she was staying in the house of the appellant and the signs of commission of offence of murder were found in abundance in the form of splashes of blood or bed sheet being soaked with blood and weapons with blood stain being recovered from the house of the appellant. 9. It was contended that the case is of no evidence as there was no witness to suggest that it could be the appellant who could have killed his daughter. 10. It is true that the evidence to that effect could not be said to be sufficient but the finding of blood or blood stained articles from the house of the appellant including the weapons, besides the finding of the blood stained jacket of the appellant from near the dead body clearly suggest that the appellant had committed the murder of the deceased who was his daughter and who was undeniably living with him in his house. There is no statement or explanation offered by the appellant as to how she 5 happened to be severed in multiple pieces. The evidence which was found inside the room of the house of the appellant by P.W. 5 clearly suggested that commission of murder took place inside it. There was no other dead body discovered or recovered and it was only the dead body of the daughter of the appellant which was found in the orchard and that appears connecting the appellant with the commission of the offence. Copious blood in the house and on the bed, besides recovery of the dead body which could be severed in various pieces and further recovery of the blood stained jacket of the present appellant by the side of the dead body suggest that the appellant must have the knowledge as to how and under what circumstances the deceased who could be none else than his own daughter, was killed. 11. Section 106 of the Evidence Act directs that if a fact is within the special knowledge of a person, the burden of proving that fact is upon him. The above circumstances which were clearly related to the appellant or his house indicated that it could be the appellant who could have committed the murder of his daughter. If the appellant was desirous of explaining the murder it was his responsibility under Section 106 of the Evidence Act to discharge it. But, no explanation was offered by the appellant nor anything was stated by him in his statement under Section 313 Cr. P.C., thus, leaving the judgment of conviction and order of sentence unaffected. It was a case which was fully covered by Section 106 of the Evidence Act as all aspects of commission of an offence were within the special knowledge of the appellant as he was not only the father of the deceased, but was also the owner of the house who could be supposed to be the person knowing about the commission of the offence. 6 The appellant having not discharged the burden under Section 106 of the Evidence Act, could be said to be rightly convicted and sentenced by the learned trial Judge. 12. In the result, the appeal fails and the same is dismissed ( Dharnidhar Jha, J.) Patna High Court The 26th August, 2011 Kanth/N.A.F.R. .