Case: State of Rajasthan Vs. Kashi Ram

2. The respondent herein Kashi Ram was married to Kalawati (deceased) about seven years before the occurrence. They were blessed with two children, Suman (deceased) and Guddi (deceased) aged two and half years and two and half months respectively. It appears from the record that the relationship between them was not cordial and there were incidents of the respondent assaulting Kalawati and treating her with cruelty. A Panchayat had also been convened at the house of the father of the respondent, however, thefather pleaded helplessness since the appellant did not pay any heed to his advice. The result was that Kalawati stayed with her parents for about two years. Later Harchand, father of the respondent assured her parents that Kashi Ram had improved in his behaviour and, therefore, Kalawati should be sent to her matrimonial home. On being convinced, Kalawati was sent to her matrimonial home.3. The case of the prosecution is that after some time Kashi Ram again started misbehaving in the same old manner and used to beat his wife Kalawati off and on.4. The case of the prosecution is that the respondent killed his wife and two daughters on the night intervening 3rd and 4th February, 1998 and thereafter disappeared. The first information regarding the incident was given by Inder Bhan, PW-6, a cousin of the father of Kalawati (deceased). On the basis of information given by him, a formal First Information Report was drawn up and a case registered against the respondent under Section 302, IPC. The first information was recorded at 10.15 a.m. on February 6, 1998 in which the informant stated as follows:The respondent was married to Kalawati (deceased) about seven years before the occurrence. Kalawati used to come to her parents off and on in the first six months after marriage but it appears that there were frequent quarrels between Kalawati and her husband (respondent herein) who used to complain that she had brought a camel instead of a buffalo at the time of marriage. He also complained that she was dark complexioned. Things came to such a stage that Kalawati had to return to her parents. On the very next day, the informant along with the father of the deceased and others went to the father of the respondent namely — Harchand and complained to him about the behaviour of his son. Harchand pleaded helplessness in the matter and advised them to do whatever they liked, since his son was not under his control. In these circumstances, Kalawati continued to stay with her parents for about one and half or two years. One day, Harchand, father of the respondent came to the house of the father of Kalawati and assured him that his son Kashi Ram (respondent herein) had improved in his behaviour and assured him that she will be cared for in her matrimonial home. The father of the deceased and other relatives after getting assurance from the brothers of Harchand decided to send her back to her matrimonial home. The respondent along with his father Harchand came and the deceased accompanied them to her matrimonial home. The respondent and his wife Kalawati (deceased) were blessed with two daughters who were two and half years and two and half months old at the time of occurrence. The respondent and Kalawati (deceased) resided with theparents for some time but about two months before the occurrence the respondent shifted to a rented premises in Prem Nagar.5. Milk used to be sent tohouse from herhouse, and her brother Mamraj, PW-2, used to supply milk every day. On February 3, 1998 as usual Mamraj, PW-2 had gone to supply milk. His sister Kalawati told him not to bring milk in future. On the next day, that is on February 4, 1998 Mamraj PW-2 noticed that the entrance of the house of the respondent was locked. On inquiry, he was told by a neighbour Gurdayal Singh that he had seen the respondent and his family members till last evening but he did not know where they had gone thereafter.6. In the evening at about 5.30 p.m. the mother of Kalawati (PW-5) came to the informant and told him that she suspected something, and therefore, requested him to find out the whereabouts of the respondent and his family members. The informant went on a motor-cycle along with one Sheo Narayan (PW-1) to search for the respondent and his family members. On the way, he met Kashmiri Lal and another son of Harchand on the bridge. On inquiry they told him that the respondent along with his family members may have gone to the Suratgarh fair and that they were also waiting for them. In the meantime, Harchand father of the respondent also came. The informant asked them to come to the house of the respondent rather than wait on the bridge. Accordingly, they all proceeded towards the house of the respondent on their respective vehicles, but as soon as they came near Prem Nagar, the two brothers of accused disappeared from his sight. At about 7.30 p.m. the informant came to the house of the respondent and found the main entrance locked. The doors were got opened and inside the house they found the dead body of Kalawati lying on a cot and dead bodies of the two children lying on another cot. It was, therefore, alleged by the informant that the respondent had committed the murder of his wife and two daughters and had thereafter disappeared.7. Dr. Prem Arora, PW-10 conducted the post-mortem examination of the dead bodies of Kalawati and her two children. On Kalawati he found the followingof ligature present on neck 2cm in width and knot present on back of neck, ligature mark is situated just below the thyroid certilage and encircling neck completely. Base of mark is pale, dry and hard. One cut section tissue below ligature mark is dry and white. No external injury present anywhere in body.Death in his opinion was caused by asphyxia. In his opinion, death of the two children was also caused by asphyxia. In his opinion, deaths had occurred 48 to 72 hrs. before the post-mortem examination which was conducted on February 7, 1998.9. At the trial several witnesses were examined to prove the case of the prosecution. PW-1, Sheo Narayan, is the person with whom PW-6 Inder Bhan had gone to search for the respondent and his family members on the request of the mother of the deceased namely - PW-5, Jai Kauri. He fully supported the case of the prosecution to the effect that he had gone with the father of the respondent and Inder Bhan, PW-5 to the house of the respondent in the evening of February 6, 1998 and after opening the main gate and removing the door from the entrance of the house they entered the house and found the dead bodies lying on two cots inside the house.10. PW-5, Jai Kauri, mother of the deceased has also deposed to the effect that her daughter was treated with cruelty by the respondent. She has narrated the incidents which took place before deceased Kalawati was sent back with her husband to her matrimonial home. She has deposed that milk used to be delivered by her son Mamraj, PW-2 at the house of the respondent and on February 3, 1998 when Mamraj had gone to deliver milk Kalawati had asked him not to bring milk thereafter since milk was to be supplied by herelder brother. She claimed that she had gone to the house of the deceased on Thursday, i.e. on February 5, 1998, but finding the doors locked she had returned. She had made inquiries from the neighbourers, who told her that they had seen them on Tuesday (February 3, 1998) evening but not thereafter. She had again gone to herhouse on Friday and it was again found locked. She grew suspicion and, therefore, requested Inder Bhan, PW-6 and Sheo Narayan, PW-1 to search for them.11. PW-2, Mamraj, a brother of deceased Kalawati has also narrated the incidents relating to the cruel treatment meted out to Kalawati by her husband. According to this witness, he used to deliver milk at the house of the respondent, since the brother of Kashi Ram, who used to supply milk to them, was ill. On February 3, 1998 when he had gone to supply milk he was told by the respondent and his sister Kalawati (deceased) to stop further supply of milk. On February 4, 1998 while returning home he had found the house of Kalawati (deceased) locked. On the next day, when his mother PW-5, went to the house of Kalawati, she also found the house locked. The neighbourers had informed them that Kalawati and Kashi Ram were last seen on Tuesday evening (3.2.1998). When his mother again went to the house of Kalawati on February 6, 1998 she found the house locked and, therefore, she had requested Inder Bhan and Sheo Narayan to search for them. This witness has been cross-examined at length but nothing has been elicited in his cross-examination which may discredit him. The assertion of this witness that he has been told by deceased Kalawati and her husband (respondent herein) on Febraury 3, 1998 to stop supply of milk, went unchallenged in his cross-examination. Only with a view to assure ourselves that this witness had also said so in his statement recorded under Section 161, Cr.P.C. we read his police statement and we find that he had said so even in the course of investigation. We have looked into the case diary not as substantive evidence but only to verify whether PW-2 had omitted to say so in the course of investigation. The substantive evidence of PW-2 that he had seen his sister and the respondent on February 3, 1998, has gone unchallenged.12. The prosecution examined two witnesses Dinesh Kumar, PW-3 and Om Prakash, PW-4 to prove that the respondent had made an extra-judicial confession before these two witnesses on February 17, 1998. The prosecution also relied on the evidence of recovery made at the instance of the respondent pursuant to which a waist chord and keys of the locks put on the two doors were recovered from the possession of the respondent on February 18, 1998. The prosecution also examined several other witnesses to prove its case.13. The Trial Court on an exhaustive consideration of the evidence on record came to the conclusion that the prosecution had successfully established that the deceased Kalawati was last seen alive in her house on February 3, 1998 and that Mamraj, PW-2 had seen her as well as her husband in their rented premises. It also held that the prosecution had proved that the two doors of the house were found locked on the morning of February 4, 1998 and that the concerned prosecution witnesses entered the house after removing the door on February 6, 1998. The house was also found locked on February 4, 1998 when the mother of deceased Kalawati had gone to her house. The Trial Court relied on the recoveries made of the weapon of offence namely — the waist chord, and the keys of the two locks, from possession of the respondent pursuant to his statement recorded under Section 27 of the Evidence Act. Reliance was also placed by the Trial Court on the extra-judicial confession said to have been made by the respondent before PWs 3 and 4. The Trial Court also found that the house was found locked on February 4, 1998, and till he was arrested on February 17, 1998, the whereabouts of the respondent were not known. Even after his arrest he did not offer any explanation and even at the trial only denied the allegations made against him without offering any explanation for his absence during the crucial days. Relying on these circumstances, and finding that the deaths were homicidal as proved by the medical evidence on record, the Trial Court came to the conclusion that the only inference that could be drawn from the proved facts and circumstances was that the respondent after committing the murder of his wife and his two daughters locked the house and disappeared from the scene. He was arrested two weeks later but failed to give any explanation in defence. Accordingly, the Trial Court finding the respondent guilty of the offence punishable under Section 302, IPC sentenced him to death having regard to the heinous nature of the crime committed by him in which three innocent lives were lost including two infants.14. On appeal, the High Court reversed the findings of fact recorded by the Trial Court and acquitted the respondent.

Reasoning: 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.