Court No. - 34
Reserved on : 10.05.2019 Delivered on: 29.05.2019
Case :- CRIMINAL APPEAL No. - 2709 of 2016
Appellant :- Jagram Yadav
Respondent :- State Of U.P.
Counsel for Appellant :- Uday Shankar Tiwari,Chandra Bhushan Mishra,Prem Shanker Mishra,Ram Prasad Yadav,Sarvesh Counsel for Respondent :- Govt. Advocate, Syed Ali Murtaza
Hon'ble Sudhir Agarwal, J. Hon'ble Raj Beer Singh, J.
(Delivered by Hon'ble Raj Beer Singh, J.)
1. This criminal appeal has been preferred by accused-appellant Jagram Yadav against impugned judgment dated 17.04.2014 and order dated 18.04.2014 passed by Shri Rama Shanker Singh, Additional Sessions Judge, Court No. 3, Basti in Session Trial No. 101 of 2012 (State vs. Jagram Yadav And Another) whereby accused-appellant was convicted under Section 304 IPC and sentenced to life imprisonment and fine of Rs. 50,000/- and in default of payment of fine, he has to undergo one year additional rigorous imprisonment, while co-accused Smt. Indrawati was acquitted of the charge under Section 304 IPC vide judgment dated 17.04.2014.
2. In this case, name of deceased is Badama, who is sister of complainant Sukhram Yadav. Marriage of deceased was solemnized with accused-appellant Jagram Yadav about 20 years prior to incident. Accused-appellant used to beat and harass her and in that regard, a case was instituted in Basti Court. However, both the parties compromised the matter. After that, deceased started living with her husband/accused- appellant but he still used to beat and harass her. On 07.01.2012 at about 12:00 in the night, accused-appellant and his sister-in-law (Bhabhi) Indrawati put the deceased on fire. One Sitaram informed Complainant about incident and thereafter, he reached there and saw that dead body of his sister was lying in burnt condition.
3. Complainant reported matter to police by submitting written complaint Ex.Ka-1 and consequently, case was registered on 08.01.2012 at 8:20 hours under Section 304 IPC vide FIR Ex. Ka-11.
4. Inquest proceedings were conducted by PW-5 S.I. Shiv Muni Ram vide inquest report Ex.Ka-2. Dead body of deceased was sealed and sent for post-mortem.
5. Post-mortem on dead body of deceased Badama was conducted on 08.01.2012 by PW-4, Dr. Ramesh Chandra, vide postmortem Ex.Ka-3 and deceased had sustained following injuries:
(i) Superficial burn from face to both knee.
(ii) Singeing of scalp hair is present.
(iii) Superficial burn both leg and foot upto bone.
(iv) Superficial burn in back of trunk and thigh.
(v) In burn injury line of redness not present and vesication and inflammation sign not present.
(vi) Nature of burn lighter antemortem or postmortem could not be ascertained. Blood sample in drawn from rt. chamber of heart for forensic examination.
6. According to Autopsy Surgeon, cause of death of deceased could not be ascertained, viscera preserved.
7. During course of investigation, PW-5 Shiv Muni Ram prepared site plan of spot and recorded statements of witnesses. After completion of investigation, accused-appellant and co-accused Indrawati were charge sheeted under Section 304 IPC vide charge-sheet Ex. Ka-10.
8. Trial Court framed following charge under Section 304/34, 506 IPC against accused-appellant Jagram Yadav and co-accused Indrawati:
“eSa vkbZ0 Mh0 nwcs] vij ftyk ,oa l= U;k;k/kh'k dksVZ la0 8] vki vfHk;qDr txjke ;kno rFkk Jherh bUnzkorh dks fuEufyf[kr vkjksikas ls vkjkfs ir djrk gw%W & izFke%& ;g fd fn0 7-1-12 dks le; 12 cts jkf=] LFkku ogn xzke ea>kfj;k] vUrxZr Fkkuk&dIrkuxat] ftyk cLrh esa vki yksxksa us oknh eqdnek lq[kjke dh cgu cnkek dks tyk fn;k] ftlds QyLo:i mldh e`R;q gks xbZA bl izdkj vki yksxkas us /kkjk& 304@34 Hkk0na0la0 ds vUrxZr n.Muh; vijk/k dkfjr fd;k] tks bl U;k;ky; ds izlaKkku eas gSA”
(Emphasis Added) “I, I.D. Dubey, Additional District & Sessions Judge, Court No. 8, Basti charge you Jagram Yadav and Indrawati as under:-
1. That on 07.01.2012 at 12:00 in the night at village Manjhariya within P.S. Kaptanganj, District Basti, you caused death of Badama, sister of complainant Sukhram by putting her ablaze and thereby committed an offence punishable under Section 304/34 IPC within the cognizance of this Court.
(English Translation by Court)
9. In order to substantiate charge, prosecution has examined eight witnesses. After prosecution evidence, statements of accused persons were recorded under Section 313 of Cr.P.C, wherein they have denied prosecution version and claimed false implication. In defence, accused persons have examined as DW-1 Ram Swasth Yadav and DW-2 Ram Swaroop.
10. After hearing and analysing evidence on record, accused-appellant was convicted under Section 304 IPC and sentenced as mentioned above, while co-accused Indrawati was acquitted of the charge under Section 304 IPC.
11. Being aggrieved by impugned judgment and order, accused- appellant Jagram Yadav has preferred present appeal.
12. We have heard Sri Prem Shanker Mishra, learned counsel for accused-appellant and Sri Syed Ali Murtaza, learned Additional Government Advocate for State-respondent.
13. Learned counsel for accused-appellant has argued that:
(i) there is no eye witness of alleged incident and there is no evidence that accused-appellant used to beat or harass deceased;
(ii) marriage of deceased was solemnized with accused-appellant about 20 years prior to incident and thus, it is not believable that after two decades of marriage accused-appellant would have harassed deceased or put on fire;
(iii) facts and evidence on record clearly indicate that deceased has sustained fire burn injuries accidentally and accused-appellant made every efforts to save her life and he tried to extinguish fire and in that process even accused-appellant sustained fire injuries;
(iv) learned Trial Court has not appreciated evidence in correct prospective and committed error by recording finding of guilt and conviction of accused-appellant is not based on evidence and is liable to be set aside.
14. Per contra, it was argued by learned A.G.A. that there is reliable evidence on record that accused-appellant used to beat and harass deceased and in that regard, a case was also instituted before alleged incident but it was compromised. It has not been disputed by accused- appellant that at the time of alleged incident, he was present at his home and thus, he was under obligation to disclose as to how deceased suffered burn injuries but explanation offered by accused-appellant is not satisfactory. It was submitted that there is evidence on record that deceased had sustained burn injuries and there is sufficient evidence on record to justify conviction of accused-appellant and present appeal lacks any merit.
15. We have considered rival contentions of learned counsel for parties and perused the record.
16. It is apparent from record that there is no eye witness to alleged incident and prosecution case is based on circumstantial evidence. It is well settled that though conviction can be based on circumstantial evidence alone but for that prosecution must establish chain of circumstances, which consistently points to the accused and accused alone and is inconsistent with their innocence. It is further essential for the prosecution to cogently and firmly establish the circumstances from which inference of guilt of accused is to be drawn. These circumstances then have to be taken into consideration cumulatively. They must be complete to conclude that within all human probability, accused and none else have committed the offence.
17. In Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, Court held as under:-
"152. 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 Sahebaro Bobade V State of Maharashtra 1973 CriLJ1783 where the following observations were made:
Certainly, it is 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 accuses, 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.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence".
18. In Joseph vs. State of Kerala, (2000) 5 SCC 197, Court has explained under what circumstances conviction can be based purely on circumstantial evidence. It observed:-
16. "it is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavor in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused."
19. Similar view has been expressed in Padala Veera Reddy v. State of Andhra Pradesh, AIR 1990 SC 79. In C. Chenga Reddy and others v. State of Andhra Pradesh, AIR 1996 SC 3390, Court has held:-
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
(Emphasis Added)
20. In State of U.P. vs. Ashok Kumar Srivastava, (1992) 2 SCC 86, it was pointed out that great care must be taken in evaluating circumstantial evidence and if evidence relied on is reasonably capable of two inferences, the one in favour of accused must be accepted. It was also pointed out that circumstances relied upon must be found to have been fully established and cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt.
21. In State of Himachal Pradesh Vs. Raj Kumar, reported in (2018) 2 SCC 69, Court was considering a case based on circumstantial evidence and taking note of the well settled legal position, in Paragraph 9 and 10, the court held:-
"9. Prosecution case is based on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused. Moreover all the circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
10. In a case, based on circumstantial evidence, the inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, it was held as under:-
"12. ...........The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."
(Emphasis Added)
22. The same principle was reiterated in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254, Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731, State of Maharashtra v. Suresh (2000) 1 SCC 471 and State of Tamil Nadu v. Rajendran (1999) 8 SCC 679.
23. In Vijay Shankar Vs. State of Haryana, reported in (2015) 12 SCC 644, although the case was based on last seen theory, the Court discussed the principles in respect of evidentiary value and held in Paragraph 8 as under:-
"8. There is no eye-witness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence vide Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116. The same view was reiterated in Bablu vs. State of Rajasthan, (2007) 2 SCC (Cri). 590."
(Emphasis Added)
24. In Varkey Joseph Vs. State of Kerala, reported in AIR 1993 SC 1892, Court held that suspicion cannot take place of proof. In Paragraph 12 of the judgment, Court concluded as under:-
"12. Suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its Patna High Court CR. APP (DB) No.202 of 1996 dt.13- 03-2018 16/ 25 case beyond all reasonable doubt. We have already seen that the prosecution not only has not proved its case but palpably produced false evidence and the prosecution has miserably failed to prove its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone committed the offence. We had already allowed the appeal and acquitted him by our order dated April 12, 1993 and set the appellant at liberty which we have little doubt that it was carried out by date. The appeal is allowed and the appellant stands acquitted of the offence under S. 302, IPC"
25. In Raja @ Rajinder Vs. State of Haryana, reported in (2015) 11 SCC 43, Court noted down in Paragraph 10 the circumstance with which the court should be satisfied in a case based on circumstantial evidence alone. Para 10, 11 and 12 of the judgment, relevant, are as under:-
"10. As the factual matrix would show, the case of the prosecution entirely hinges on circumstantial evidence. When a case rests on circumstantial evidence, the Court has to be satisfied that:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be Patna High Court CR. APP (DB) No.202 of 1996 dt.13- 03-2018 17/ 25 consistent with the guilt of the accused but should be inconsistent with his innocence."
26. In Balwinder Singh v. State of Punjab, 1995 Supp (4) SCC 259, it has been laid down that:-
"4. ..... the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof."
27. From the aforesaid authorities, it is clear that in a case based on circumstantial evidence, Court is required to evaluate circumstantial evidence to see that the chain of events have been established clearly and completely to rule out any reasonable likelihood of innocence of the accused. Needless to say whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted [See Ujjagar Singh v. State of Punjab, (2007) 13 SCC 90 : (2009) 1 SCC (Cri) 272].
28. The principle that emerges from the above discussed decisions is that conviction can be based solely on circumstantial evidence, but it should be tested on the touchstone of law relating to circumstantial evidence laid down in the above discussed authorities.
29. Though conviction can be based on circumstantial evidence alone, but for that prosecution must establish the chain of circumstances, which consistently points to the accused and accused alone and is inconsistent with his/their innocence. It is further essential for the prosecution to cogently and firmly establish the circumstances from which inference of guilt of accused is to be drawn. These circumstances then have to be taken into consideration cumulatively. They must be complete to conclude that within all human probability, the accused and none else have committed the offence.
30. In the present case, deceased Badama is wife of appellant Jagram Yadav. It is not in dispute that they were residing together. Version of prosecution is that on 07.01.2012 at about 12:00 in the night, at his tea shop/residence, accused-appellant and his sister-in-law (Bhabhi) Indrawati put deceased on fire. It is not in dispute that on morning of 08.01.2012, dead body of deceased was found in burnt condition.
31. PW-1 Sukhram Yadav has stated that his sister Badama was married with accused-appellant about 20 years prior to incident. After marriage, accused-appellant and co-accused Indrawati used to beat and harass Badama for dowry. In the year 1999, they turned, deceased Badama, out from their home and she started residing at house of PW-1 (parental home). Deceased had also instituted a case for maintenance. However, later on that case was compromised in the year 2006 and accused- appellant had taken deceased to his home. After sometime, accused- appellant again started harassing her. Whenever deceased used to visit her parental home, she narrated about harassment meted out to her by accused-appellant. PW-1 further stated that on 08.01.2012 at around 5:00 AM, one of his relative, namely, Sitaram informed Complainant that on the night of 07.01.2012 at around 12:00, accused-appellant and co- accused have burnt deceased to death. Complainant (PW-1) went there and saw dead body of his sister, lying in a burnt condition. PW-1 submitted written tehrir Ex. Ka-1 before police. It was further stated by PW-1 that accused-appellant has illicit relation with his sister-in-law (bhabhi) and deceased was killed due to that reason.
32. PW-2 Jokhu, who is father of deceased, supporting prosecution case, stated that marriage of deceased had taken place with accused- appellant about 15-20 years, prior to incident but after marriage, she was harassed by accused-appellant and his sister-in-law (bhabhi) on account of dowry. About 12-13 years back, accused persons turned deceased out of their home and thereafter, a case was instituted against them. However after 6-7 years, that case was compromised. After compromise, accused- appellant took deceased with him but again started harassing her. PW-2 stated that one Sitaram had informed about incident and told that deceased was burnt to death by accused persons. PW-2 along with his family members went there at about 6:00 AM and found that deceased was lying dead in burnt condition.
33. PW-3 Sitaram stated that he as well as accused-appellant are residents of same village. About 8-9 months back, he came to know that Badama/wife of accused-appellant had died of burn injuries at tea shop of accused-appellant. PW-3 informed her family members. Thereafter, family members of deceased reached there and police have conducted inquest proceedings. PW-3 further stated that deceased used to reside at village Manjheriya while accused-appellant and co-accused Indrawati were running a tea shop at Kalyanpur Chauraha and sometime, they used to stay there. Accused-appellant often used to beat his wife and once he had turned her out of his home.
34. PW-4 Dr. Ramesh Chandra has conducted post-mortem on dead body of deceased and he duly proved postmortem report Ex. Ka-3.
35. PW-5 S.I. Shiv Muniram has conducted investigation, PW-6 Hansraj has recorded FIR, PW-7 Sanjay Kumar Singh has taken photographs of spot and PW-8 Constable Ram Narayan Tiwari assisted during investigation.
36. DW-1 Ram Swasth Yadav stated that accused-appellant and his wife used to run a tea shop and he never saw any dispute between them. On the day of incident, after hearing noise, he reached there and saw that accused-appellant was extinguishing fire of his wife and in that process sustained burn injuries at both of his hands as well as on mouth. DW-1 stated that as per his information, deceased had sustained burn injuries by accident.
37. DW-2 Ram Swaroop has also made a similar statement to that of DW-1.
38. The first question that arises for consideration is, “whether death of deceased Badama is homicidal in nature?
39. As per postmortem report Ex.Ka-3 of deceased, she had sustained superficial burn from face to both knee, superficial burn both leg and foot upto bone, superficial burn in back of hand and thigh. In burn injury line of redness was not present and vesication and inflammation sign were not present, singeing of scalp hair is present. Nature of burn lighter, antemortem or postmortem could not be ascertained. According to autopsy Surgeon, cause of death of deceased could not be ascertained and viscera was preserved. However, as per viscera report Ex. Ka-4, no poison was detected. In his cross-examination, PW-4 Dr Ramesh Chandra stated that death of deceased is possible by burn injuries sustained by her.
40. Besides this, there are certain other aspects, which indicate that death of deceased was not accidental. Position of spot shows that there was bundle of weeds near scene of offence. As per Forensic Science Laboratory report, there was presence of kerosene on clothes and hairs of deceased. In cells of heart, there was no sign of kerosene or carbon. If deceased might have sustained injuries accidentally, deceased might have inhaled particles of kerosene and carbon but there was no sign of kerosene inside her body. As per report Ex. Ka-13, there were bundles of weed at scene of offence. A plastic container having smell of kerosene and one dibri (small earthen lamp) were lying there. Dead body of deceased was found lying straight on floor. If deceased might have sustained fire accidentally, in order to save herself, she might have run here and there but there is no sign that she had tried to save herself. No house hold article was lying scattered or burnt. Even if it is assumed that she sustained fire by 'dibri', she must not have sustained burns on such big part of her body and it was not possible that kerosene would be found in her clothes and hairs. Similarly, in fire from L.P.G. Gas burner also, there was no possibility that kerosene would be found in her clothes and hairs. In accidental fire, it was not possible that she would sustain burn injuries at her both foot legs up to foot. She has suffered burn on both side of her body. Line of redness was not present and vasication and inflammation sign were not present. Besides this, her tongue was lying protruded and both lungs were congested. In fact, these traits indicate that burns sustained by deceased were post-mortem. At any rate, these are not traits of death caused by accidental burning. Considering scene of offence and nature of burns, it is clear that death of deceased was homicidal in nature. Merely because in postmortem report, PW-4 has not stated cause of death, it would not make much difference, particularly, when PW-4 has clarified in his statement that sample of viscera was taken to ascertain whether deceased had consumed any poison or not. In view of medical evidence on record, it is clear that deceased suffered homicidal death. Here, it may be stated that accused-appellant has not come up with a clear version, how deceased sustained burn injuries. In view of all these facts, it is held that death of deceased was homicidal in nature. Viewed from all angles and aspects, we are satisfied to affirm findings of Trial Court that this is a case of homicidal death and not accidental/suicidal.
41. It is apparent from record and this fact is not disputed that on the night of 07.01.2012, deceased was with her husband/ accused-appellant at his tea shop. On the morning of 08.01.2012, dead body of deceased was found in burnt condition. There is no eye-witness of alleged incident. However, it is not disputed that on the fateful day, they both were together. PW-1 Sukhram Yadav and PW 2 Jokhu, who are brother and father of deceased, have consistently stated that deceased was being harassed by accused-appellant for dowry and earlier in the year 1999, he has even turned deceased Badama out from his home and in that regard a case for maintenance was also instituted, which was compromised in year 2006 but accused-appellant again started harassing her. No material contradiction could be pointed out regarding that version. Even appellant has not disputed fact that on the night of 07.01.12, deceased was with him and that on the morning of 08.01.12, her dead body was found in burnt condition.
42. In view of these facts and considering provisions of Section 106 of Indian Evidence Act, 1872, burden shifts to appellant to disclose as to how deceased met death. Plea of appellant Jagram Yadav in his statement under Section 313 of Cr.P.C. is that his wife was in flame and he has tried to extinguish fire and in that process, he has sustained burn but this version is not supported by any medical evidence. Here, it may be pointed out that accused-appellant had not clarified as to how deceased caught fire. He is silent on this point. Though DW-1 and DW-2 have supported version of accused-appellant but no such suggestion was made to PW-1 and PW-2 that he tried to extinguish fire and consequently, he too sustained burns at his hands and mouth. There is absolutely no clarification on the point that if he sustained any burn injury, why this fact is not supported by any medical evidence. It is quite natural that if he sustained burns at his hands and mouth, he might have got treatment somewhere but no such evidence was brought on record. When he was arrested, no such sign was noted that his hands and mouth were having any burns. In view of these facts, explanation of accused-appellant that he tried to extinguish fire sustained by deceased, and during that process he too suffered burns at his hands and mouth, does not inspire confidence and thus, can not be believed.
43. In Neel Kumar @ Anil Kumar v. State of Haryana, (2012) 5 SCC 766, Court observed as under:-
“It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 CrPC. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. (See also: Aftab Ahmad Anasari v. State of Uttaranchal, AIR 2010 SC 773).”
44. In case where accused has been seen with deceased victim (last seen theory), it becomes duty of accused to explain circumstances under which death of victim has occurred. (Vide: Nika Ram v. The State of Himachal Pradesh, AIR 1972 SC 2077; Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106; and Ponnusamy (supra).
45. Keeping in view above stated pronouncements, in the present case, it is apparent that accused-appellant has given a false explanation that he tried to extinguish fire caused by deceased. Further, he did not inform family members of deceased regarding this incident, rather it was one Sitaram (PW 3), who informed Complainant about this incident. There is nothing on record that he tried to take deceased to hospital for treatment. If accused-appellant was trying to save deceased from fire, as claimed by him as a natural conduct, he might have taken her to hospital for treatment. But instead of taking her to hospital, he ran away from there. PW-2 has stated that after incident, accused-appellant was not found present at his house. Thus, conduct of accused-appellant was also incriminating. In absence of any satisfactory explanation from accused- appellant, an inference has to be drawn that it was he, who caused death of deceased.
46. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006)10 SCC 681, Court held as under:-
“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.”
47. It may be stated, if an offence takes place inside privacy of a house and in such circumstances where assailants have all opportunity to plan and commit offence at time and in circumstances of their choice, it will be extremely difficult for prosecution to lead evidence to establish guilt of accused, if strict principle of circumstantial evidence, as noticed above, is insisted upon by Courts. Law does not enjoin a duty on prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. Duty on prosecution is to lead such evidence which it is capable of leading, having regard to facts and circumstances of case. Here, it is necessary to keep in mind Section 106 of Indian Evidence Act, 1872 which says that when any fact is especially within knowledge of any person, burden of proving that fact is upon him. If an offence has been committed in secrecy, inside a house, initial burden to establish case would undoubtedly be upon prosecution, but nature and amount of evidence to be led by it to establish charge cannot be of same degree as is required in other cases of circumstantial evidence. Burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act, there will be a corresponding burden on inmates of house to give a cogent explanation as to how crime was committed. The inmates of house cannot get away by simply keeping quiet and offering no explanation on supposed premise that burden to establish its case lies entirely upon prosecution and there is no duty at all on an accused to offer any explanation.
48. In fact Section 106 of Evidence Act, 1872 is not intended to relieve prosecution of its burden to prove guilt of accused beyond reasonable doubt, but said Section would apply to cases where prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding existence of certain other facts, unless accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive court to draw a different inference.
49. No doubt mere conjectures or suspicion can not take place of legal proof and large distance between `may be’ true and `must be’ true, must be covered by way of clear, cogent and unimpeachable evidence produced by prosecution, before an accused is condemned as a convict, as observed by the Apex Court, but it is equally established that law does not enjoin a duty on prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. Duty on prosecution is to lead such evidence which it is capable of leading, having regard to facts and circumstances of case.
50. In the present case, plea of appellant is that in the night of 07.01.12 deceased sustained fire burn injuries accidentally but there is no explanation as to how accident took place. As stated earlier, his version that he tried to extinguish fire and in that process also sustained burns at his hands and mouth is not found convincing. Further, deceased was being harassed by accused-appellant for dowry and that even after incident, his conduct was quite incriminating. Instead of informing incident to her family members, after incident, appellant absconded from his house. In facts and circumstances of present case, circumstances unerringly point to guilt of appellant Jagram Yadav.
51. In Amarsingh Munnasingh Suryawanshi v. State of Maharashtra [(2007) 15 SCC 455], Court, while dealing with a situation where accused-husband was absconding and husband and wife were living together and at the time of death, they were alone in room, observed that it was for accused-husband to explain as to how deceased met her death. In the instant case, as noted earlier, death of deceased is homicidal and explanation of accused-appellant, in our view, is false. Further his conduct is also incriminating. All these circumstances, results to clear inference that it was accused-appellant Jagram, who put deceased ablaze and thereby caused her death.
52. It is clear from evidence that deceased died of homicidal death on the night of 07.01.12 and her dead body was found on 08.01.12 at house- cum-tea shop of accused-appellant. On the night of 07/08.01.12, deceased was with her husband/appellant Jagram Yadav. There is evidence that deceased was being harassed on account of dowry and even before this incident, appellant had turned her out from his home and thereafter she had filed a case against him, however, it was later on compromised. Appellant failed to offer any satisfactory explanation as to how deceased suffered burns. Explanation offered by him has been found false. Conduct of appellant has been found inculpatory. Considering entire evidence on record, it is clear that chain of circumstances is complete and in all human probability, it was appellant Jagram Yadav, who put deceased on fire and caused her death.
53. Considering entire facts and taking cumulative effect of all incriminating evidence on record, we are of considered opinion that conviction of appellant-accused Jagram Yadav is based on evidence and Trial Court was justified in convicting appellant accused Jagram Yadav under Section 304 of IPC. In fact, offence in question falls within the ambit of Section 302 IPC but as there is no State appeal, we affirm conviction of accused-appellant Jagram Yadav under Section 304 (Part I) IPC.
54. So far as sentence of accused-appellant is concerned, it is always a difficult task requiring balancing of various considerations. Question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
55. In the instant case accused-appellant is sentenced to maximum punishment ie imprisonment for life along with fine of Rs. 50,000/- under Section 304 IPC, we find no good reasons to reduce the same. Applying principles laid down in the aforesaid judgments and having regard to totality of facts and circumstances of case, nature of offence and manner in which it was executed or committed, we find that punishment imposed upon accused-appellant Jagram Yadav by Trial Court vide impugned judgment and order is not excessive and it appears fit and proper.
56. Resultantly appeal is dismissed. Conviction and sentence of appellant-accused Jagram Yadav under Section 304 IPC is affirmed. He is stated in jail and thus, he shall serve out remaining sentence.
57. A copy of this order be communicated to the court concerned forthwith.
Order Date : 29.05.2019 Anand
(Raj Beer Singh) (Sudhir Agrawal)