Abrasion 1.5 cm x 1 cm on the upper lip
2. Abrasion 1 x 05 cm
3. 0.5 cm x 0.5 cm abrasion inside of lower lip
4. Abrasion 0.5 x 0.5 cm lower lip
5. Abrasion 4 x 1 cm below stomach side.
The Doctor opined that the deceased died due to suffocation and smothering. The Doctor also opined that the injuries could be caused by brick.
PW 8 is constable Rakesh who stated that the dead body alongwith inquest papers was handed over to constable Ashok Kumar for being carried for post mortem and after post mortem the body was handed over to the complainant.
PW 9 is Ghanshyam Singh who took over investigation on 15.12.2005. He deposed that Immediately after taking over the investigation, statements of witnesses were recored. He also deposed that the accused surrendered in court on 23.12.2005. He recorded the statement of the accused on 4.1.2006 He deposed that after completing remaining proceeding, he submitted charge sheet in the court.
In cross examination, he denied the suggestion that the charge sheet was submitted in court without any valid basis.
To begin with, the learned counsel assailed the credibility of the testimony of PW 3 Mona on the ground that she was not named in the FIR as eye witness and she has been subsequently brought in picture to invigorate and lend credibility to the prosecution case. In connection with the above submission, we have delved into the FIR and also the testimonies of the witnesses. There is no gainsaying of the fact that PW 3 Mona was not named in the FIR nor has it been mentioned that she was an ocular witness of the occurrence. From a scrutiny of her testimony, we converge to the view that her testimony is credible one and inspires confidence although the fact remains that she is a child witness. We are conscious of the fact that a child witness is a dangerous witness as he/she is pliable and liable to be influenced easily and evidence of such witness has to be acted after careful scrutiny. The learned Sessions Judge has placed credence on her testimony as having an impress of truth. We have all over again gone through her testimony and it would appear that she had informed PW 2 Rinku and PW 4 Manoj about assault on the deceased by the appellant.
We would first dwell on the submission whether it would erode the credibility of the prosecution case merely because name of Mona PW 3 was not mentioned by the complainant in the FIR. In connection with this submission, we would like to advert to a decision of the Apex Court in Chhuttan Lal v State of Rajasthan (2003) 6 SCC 397 relevant portion of which being germane is excerpted below.
"Evidence of the person whose name does not perforce become suspect. There can be no hard and fast rule that the names of all witnesses, more particularly eye witnesses should be indicated in the F.I.R. As was observed by this Court in Shri Bhagwan v State of Rajasthan (2001) 6 SCC 296, mere non-mention of the name of an eye witness does not render the prosecution version fragile."
In the facts and circumstances of the present case, we are of the view that non-mention of name of Mona PW 3 in the First Information Report would not render the prosecution fragile. The complainant was the real brother of the deceased and the Court can very well visualize the distraught condition of the complainant at the relevant time. In our considered view, if the name of Mona had not been mentioned in the FIR, her testimony cannot be thrown above board on this ground alone.
The next attack of the learned counsel is again on the testimony of PW 3 Mona. In this limb of argument, the learned counsel argued that it had come in the deposition of PW 3 Mona that on her return from Godown, she saw through crevices of the door that the appellant while sitting on the chest of the deceased was assaulting her. He further argued that if it was so, there was no occasion for the witness to have informed PW 2 when she had gone to Godown to deliver meal to him, about beating being given by the appellant to the deceased. In connection with this submission, we have all over again scrutinized the evidence. It is categorically stated by PW 4 in his deposition that when Mona returned after giving food, she again came to the Godown and informed about the incident. The testimony as noted above, furnishes answer to the arguments of the learned counsel for the appellant. By this reckoning, we are of the view that the submission on this count is not loaded with any substance.
It is significant to mention here that the manner of assault as narrated by PW 3 Mona finds full corroboration from the post mortem report. The salient aspects of her deposition may be recalled here. PW 3 has stated that her sister was killed by Mukesh and she had seen him assaulting her sister. She also stated that she was assaulted by brick and she was also strangulated and that when her sister cried for help. the appellant sat on her chest. In this connection, we may also advert to the testimony of PW 7 Dr Hansraj Singh who had conducted autopsy. The doctor aforesaid clearly opined that injury nos 1,2, 3 and 4 may be caused by brick attack and if brick is sharp edged, then injury no 5 may be caused. The cause of death of the deceased was opined to be suffocation and smothering.
We may also advert to another important circumstance of the case. According to the testimony of PW 3, Mona, only deceased and appellant were inside the room/house when the deceased was assaulted by the appellant. It is borne out from the record that the room was found bolted from outside. We may now advert to the deposition of PW 2 Rinku. He deposed that he had received a call from appellant on the mobile of Ravi, owner of the Godown in which appellant asked Rinku to go to the house and take welfare as he was away from Kiraoli. When PW 2 and his brother arrived at the room, it was found bolted from outside. When the lock was broken, his sister was found lying supine on a cot and blood was oozing from her nose and ears and a noose of yellow saree was found tied around her neck. The evidence of PW 2 has been substantiated by evidence of PW 4.
It is a settled principle of law that where an offence is committed in the privacy of a house, the initial burden to establish the case would undoubtedly lie on the shoulder of the prosecution but the nature and amount of the 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 comparatively of a lighter character. In this connection attention is drawn to section 106 of the Evidence Act which envisages that 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 premises that the burden to establish its case lies entirely upon the prosecution and there is not duty at all of the accused to offer an explanation.
In connection with the above, we feel called to refer to the decision of the Apex Court in Trimukh Marothi Kirkan (2-007) 1 SCC Crl 80 and para 14 of the said decision being relevant is quoted below.
"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 v. 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 travelling on a railway without ticket. The burden of proving that he had a ticket is on him."
Reverting to the case in hand, there remains no manner of doubt that the prosecution has succeeded in leading evidence in order to show that shortly before the commission of crime, the appellant and deceased were seen together and appellant had not offered any explanation as to how his wife received injuries nor offered any explanation to elucidate on the cause of death. In our considered view, it constitutes a strong circumstance which evinces that the appellant was responsible for commission of the crime.
For the foregoing discussions, we are of the firm opinion that the Sessions Judge rightly placed credence on the testimony of PW 3 Mona and recorded verdict of conviction. We find no infirmity in the finding and in our considered view, the view taken by the learned Sessions Judge should be affirmed. It is accordingly affirmed.
In the above conspectus, the appeal fails and is dismissed. The appellant is incarcerated in jail. He shall serve out the sentence awarded by the trial court as affirmed by us.
MH May 13, 2011