Case: State of Rajasthan Vs. Kashi Ram

that the respondent made only a bald denial of all the incriminating circumstances put to him, and had no explanation to offer.26. It was then submitted on behalf of the respondent that the neighbourers who had stated that they had seen the respondent and deceased Kalawati on the evening of February 3, 1998 were not examined by the prosecution. In view of the evidence of PW-2, Mamraj who proved this fact, the non-examination of those witnesses does not have any adverse effect on the case of the prosecution. It was also submitted that there is no evidence to show that the respondent No. 1 was absconding after the occurrence. From the facts proved on record it is established that on February 4, 1998 the house was found locked. The same was the position on February 5, 1998. when PW-5, Jai Kauri, mother of deceased Kalawati visited the house of her daughter and found the house locked. Finding the house also locked on February 6, 1998, she became anxious to know about the welfare of her daughter and, therefore, she went to the informant, PW-6 and requested him to find out the whereabouts of her daughter Kalawati and members of her family. These facts clearly prove that while the doors of the house of the respondent were locked, he was nowhere on the scene. The fact that PWs 1 and 6 went in search of the respondent and the deceased and their children, and were informed by the respondent’s brother that he may have gone to Suratgarh fair, also points in the same direction. Obviously, therefore he was absconding after commission of the offence. In fact, he never appeared on the scene till his arrest on February 17, 1998. There is, therefore, abundant evidence to prove that the respondent was traceless between February 4, 1998 and February 17, 1998. Reliance placed by Counsel on the decision of this Court in P. Mani v. State of Tamil Nadu, II (2006) SLT 438=IV (2006) CCR 241 (SC)=(2006) 3 SCC 161 , is of no avail in the facts and circumstances of this case.27. It was lastly submitted that in his examination under Section 313, Cr.P.C. though the circumstance regarding his having been seen on the evening by his neighbourers on February 3, 1998 was put to the respondent accused, the name of PW-2 was not mentioned as a person who had also seen him on that day with the deceased. The fact remains that the incriminating circumstance was put to the accused and his response was a bald denial. We do not find that any prejudice was caused to the respondent by not mentioning the name of PW-2, when the incriminating circumstance appearing against him was put to him. 28. In the facts and circumstances of the case, we are satisfied that this appeal ought to be allowed. The High Court completely brushed aside the most incriminating circumstance which was proved by the prosecution namely — that the respondent was last seen with his wife on February 3, 1998 whereafter the house was found locked and the respondent was not to be seen anywhere. He continued to be traceless till February 17, 1998 when he was arrested. The respondent did not offer any explanation in defence and his response to all the incriminating circumstances put to him in his examination under Section 313, Cr.P.C. was a bald denial. 29. The following incriminating circumstances are clearly established against the respondent: (a) That he was not on cordial terms with his wife Kalawati.(b) On the evening of February 3, 1998 he was seen in his house with his wife Kalawati (deceased).(c) The house of the respondent was found locked on the 4th, 5th and 6th February, 1998.(d) On February 6, 1998 when his house was opened the dead bodies of his wife and daughters were found, and the medical evidence established that they had been strangulated to death, the cause of death being asphyxia.(e) Since the respondent was not traceable the mother of the deceased PW-5, Jai Kauri became anxious to know about their whereabouts and requested PWs 1 and 6 to search for them.(f) In the course of investigation the respondent never appeared at any stage, and for the first time he appeared on the scene when he was arrested on February 17, 1998.(g) Even after his arrest he did not offer any explanation as to when he parted company with his wife nor did he offer any exculpatory explanation to discharge the burden under Section 106 of the Evidence Act. 30. These incriminating circumstances in our view form a complete chain and are consistent with no other hypothesis except the guilt of the accused respondent. If he was with his wife on the evening of February 3, 1998, he should have explained how and when he parted company and/or offered some plausible explanation exculpating him. The respondent has not pleaded alibi, nor has he given an explanation which may support his innocence.31. We are aware of the fact that we are dealing with an appeal against acquittal, but having appreciated the evidence on record we have come to the conclusion that the High Court has completely given a go bye to the most important incriminating circumstance which appeared against the accused respondent. In the facts and circumstances of the case the most incriminating circumstance about the respondent being seen with his wife on February 3, 1998 and disappearing thereafter, and his failure to offer any explanation when arrested, has been completely ignored by the High Court by simply recording the finding that there was nothing unusual in the husband being found with the wife in his house. The High Court failed to appreciate the other co-related circumstances namely — his disappearance thereafter locking of the house, and his failure to offer a satisfactory explanation in defence. Thus, the High Court has ignored important clinching evidence which proved the case of the prosecution. Therefore, interference with the judgment of the High Court is warranted.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]15. So far as the recoveries are concerned, the High Court has not accepted the same since PW-6, Inder Bhan admitted in the course of his cross-examination that the waist chord which had been used for strangulating Kalawati was recovered much earlier from the scene of offence by the police itself. Moreover, the waist chord as well as the keys were not even produced before the Court. It may be that some other witnesses have stated that the waist chord was not recovered from the spot, but in the facts of the case the benefit of doubt must go to the accused.16. The most important circumstance that the respondent was last seen with the deceased on February 3, 1998 whereafter he had disappeared and his house was found locked and that he had offered no explanation whatsoever, was disposed of by the High Court in one short paragraph observing that there was nothing unusual if the accused was seen in the company of his own family members in his house. On such reasoning, the High Court held that the circumstantial evidence relied upon by the prosecution was not strong enough to sustain the conviction of the respondent. Accordingly, the High Court allowed the appeals preferred by the respondent and declined the death reference made by the Trial Court for confirmation of the sentence of death.17. We have been taken through the entire evidence on record. The medical evidence on record clearly proves that the death of Kalawati and her two minor daughters was homicidal caused by strangulation. The cause of death was asphyxia. It is also established on record that the deceased was last seen alive in the company of respondent on February 3, 1998 at her house. The prosecution has also successfully established the fact that the house was found locked on the morning of February 4, 1998 and continued to remain locked till it was opened after removing the door on February 6, 1998. Throughout this period the respondent was not to be seen and he was arrested only on February 17, 1998. Neither at the time of his arrest, nor in the course of investigation, nor before the Court, has the respondent given any explanation in defence. He has not even furnished any explanation as to where he was between February 4, 1998 and February 17, 1998. It has been argued on behalf of the prosecution that this most important circumstance has been completely ignored by the High Court. The case of the prosecution substantially rested on this circumstance. The respondent was obliged to furnish some explanation in defence. He could have explained where he was during this period, or he could have furnished any other explanation to prove his innocence. Counsel for the respondent on the other hand, contends that though the respondent furnished no explanation whatsoever, there is evidence on record to prove that he had gone to attend Suratgarh fair with his family members. A question, therefore, arises whether the presumption under Section 106 of the Evidence Act may be drawn against the respondent in the facts of the case, since the facts as to where he was during the relevant period and when he parted company with the deceased, were matters within his special knowledge the burden of proving which was cast upon him by law.It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd., AIR 1960 Madras, 218.In the facts and circumstances of the case, we are satisfied that this appeal ought to be allowed. The High Court completely brushed aside the most incriminating circumstance which was proved by the prosecution namely — that the respondent was last seen with his wife on February 3, 1998 whereafter the house was found locked and the respondent was not to be seen anywhere. He continued to be traceless till February 17, 1998 when he was arrested. The respondent did not offer any explanation in defence and his response to all the incriminating circumstances put to him in his examination under Section 313, Cr.P.C. was a bald denial.These incriminating circumstances in our view form a complete chain and are consistent with no other hypothesis except the guilt of the accused respondent. If he was with his wife on the evening of February 3, 1998, he should have explained how and when he parted company and/or offered some plausible explanation exculpating him. The respondent has not pleaded alibi, nor has he given an explanation which may support his innocence.31. We are aware of the fact that we are dealing with an appeal against acquittal, but having appreciated the evidence on record we have come to the conclusion that the High Court has completely given a go bye to the most important incriminating circumstance which appeared against the accused respondent. In the facts and circumstances of the case the most incriminating circumstance about the respondent being seen with his wife on February 3, 1998 and disappearing thereafter, and his failure to offer any explanation when arrested, has been completely ignored by the High Court by simply recording the finding that there was nothing unusual in the husband being found with the wife in his house. The High Court failed to appreciate the other co-related circumstances namely — his disappearance thereafter locking of the house, and his failure to offer a satisfactory explanation in defence. Thus, the High Court has ignored important clinching evidence which proved the case of the prosecution. Therefore, interference with the judgment of the High Court is warranted.