Hon'ble Rajiv Gupta,J.
(Delivered by Hon. Rajiv Gupta, J) The present appeal calls in question the defensibility of the judgment of conviction and the order of sentence dated 30.8.2011 passed by Addl. Sessions Judge, Court No. 6, Mathura in Sessions Trial No. 406 of 2009, State of U.P. vs. Nasir @ Fuddan & another arising out of Case Crime No. 455 of 2009, P.S. Kotwali, District- Mathura, whereby the appellant- Nasir @ Fuddan has been convicted under Section 302 IPC and awarded the sentence of life imprisonment while acquitting the other accused Munna Khan.
The prosecution case as set out in the written report Exbt.-Ka-1 of P.W.-1- Chhitaria, the first informant is that he had married his daughter with the appellant Fuddan @ Nasir, who used to take narcotic/psychotropic substance. It is further alleged that whatever her daughter used to earn by her hard labour, was snatched by him and spent in taking narcotic/psychotropic substance. On getting knowledge about the said fact on 22.4.2009, he sent his son Islam to persuade the appellant- Nasir @ Fuddan to give up his habit of taking narcotic/psychotropic substance. On 23.4.2009 at about 7:00 a.m, his son Islam telephonically informed him that last night, he along with his elder sister- Maya and brother in-law Nasir along with his wife were sleeping on the roof. At about 5:00 a.m. his brother in law to fulfil his urge for narcotic/psychotropic substance asked his sister to part some money. On refusal by her sister, in a fit of rage, Nasir took up a Aata-chakki stone lying nearby and assaulted his sister on her head. He along with his sister snatched the stone from him however in the said assault, his elder sister sustained injuries on her mouth and Jija Nasir sustained injury in his hand. However, Nasir somehow managed to make his escape good and her sister died instantaneously. Her dead body is lying on the roof. It is further alleged that prior to this incident, the applicant had also visited his daughter's place in order to persuade his son in law and his father, which resulted in a quarrel between husband and wife and in the said quarrel, accused Munna Khan had instigated his son to assault his daughter Guddan. On the basis of aforesaid written report (Exbt. Ka-1), an FIR was registered vide Case Crime No. 455 of 2009, under Sections 302/120B IPC at Police Station- Kotwali, District- Mathura on 23.4.2009 at 9:10 a.m., Chik FIR (Exbt. Ka-2) and the corresponding G.D. Entry vide Rapat No. 9 dated 23.4.2009 was prepared by the constable, a carbon copy whereof was brought on record as Exbt. Ka-4. The investigation of the case was entrusted to the Office Incharge, P.S. Kotwali, Mathura, who after registration of the first information report rushed to the place of occurrence and conducted the inquest proceeding on the person of the deceased and after preparing the necessary police papers i.e. the Photo-nash, Chitthi nash, Chitthi C.M.O, Chitthi R.I. and sample of seal for sealing the dead body sent the same for post-mortem. The I.O. also prepared the site-plan and had collected the blood stained earth, plain earth and blood stained stone of Aata-Chakki and prepared its recovery memo. He also examined the witnesses and recorded the statements under Section 161 Cr.P.C.
An autopsy was conducted on the person of the deceased on 23.4.2009 at 3:40 p.m. by Sri Ajay Agarwal of District Hospital, Mathura, who had noted the following injuries on the person of the deceased :-
(1) General External Observation The deceased was of average body built. Rigor-mortis was present all over the body. Blood was coming out from nose and right ear.
(2) Ante-Mortem (external) Injuries
(i) Lacerated wound, 2 cm x 1 cm over right side above the eye brow.
(ii) Abrasion, 2 cm x 1 cm over right ear.
(3) Ante-Mortem (internal) Injuries
(i) Brain and its membranes were found lacerated.
(ii) Right temporal and parietal bones and base were found fractured.
(4) Cause of death ; Died due to head injury The deceased was also found six months pregnant.
The Investigating Officer after collecting cogent and reliable evidence against the accused-appellant Nasir @ Fuddan and his father Munna Khan, filed charge-sheet against them in the Court of Chief Judicial Magistrate, Mathura under Section 302/120B IPC.
The Chief Judicial Magistrate, Mathura took cognizance of the offence on the basis of charge-sheet against the accused persons and after complying the provisions of Section 207 Cr.P.C. committed the case to the Court of Sessions, where the case was registered as Sessions Trial No. 406 of 2009; State vs. Nasir @ Fuddan and another who thereafter made over the case for trial before the Addl. Sessions Judge, Court No. 6, Mathura. The trial court framed charges under Section 302 IPC against the appellant Nasir and against the co-accused Munna Khan framed charges for the offence punishable under Section 302 read with 109 IPC. Both the accused abjured the charge and claimed to be tried.
The prosecution in order to bring home the guilt against the appellant has examined as many as four witnesses of fact. Chhitaria (P.W.-1) is the father and first informant of the case. Raju (P.W.-2) is the brother of the deceased. Islam (P.W.-3) is the another brother of the deceased and an eye witness. Maya (P.W.-4) is the elder sister of the deceased and also an eye witness. During the course of trial, only P.W.-1, who admittedly was not an eye witness, supported the prosecution story in his examination in-chief but did not support the prosecution case in his cross examination, however, he has not been declared hostile by the prosecution. The other three witnesses, namely Raju (P.W.-2), Islam (P.W.-3) and Maya (P.W.-4) have not at all supported the prosecution story and all the three witnesses have been declared hostile by the prosecution. The prosecution has dispensed with the formal witnesses however the genuineness of the documents particularly the post-mortem, site-plan, panchayatnama, serologist report and memo of recovery and other documents has been admitted by the defence. The accused were then asked to enter in their defence and their statement u/s 313 Cr.P.C. has been recorded. The appellant Nasir in his statement has clearly stated that he is innocent and has been falsely implicated in the present case. However, in his statement in reply to question No. 13 has stated that on the alleged date and time of incident, he was sleeping on the roof. However, he has not led any evidence in his defence.
Learned Addl. Sessions Judge, Court No. 6, Mathura after considering the submissions advanced by learned counsel for the parties and scrutinizing the evidence on record both oral as well as documentary, convicted the appellant- Nasir @ Fuddan under Section 302 IPC and awarded the sentence of life imprisonment to him. However, acquitted the other co-accused Munna Khan.
Heard Sri Pradeep Kumar Mishra, learned Amicus Curiae for the appellant and Sri Arunendra Kumar Singh, learned AGA for the State.
Learned counsel for the appellant has submitted that except P.W.-1- Chhitaria who is the first informant and father of the deceased none of the other witnesses P.W.-2, P.W.-3 and P.W.-4 have supported the prosecution story and have been declared hostile. He has further submitted that even P.W.-1 though to some extent supported the prosecution case in his examination-in-chief but in his cross examination has resiled from his statement and did not support the prosecution case yet he has not been declared hostile by the prosecution. He has further submitted that even according to the prosecution own case, he is not an eye witness of the incident and has deposed only on the basis of information given to him by his son Islam. Thus his evidence is based on hearsay and no credence whatsoever can be attached to his testimony to establish the manner of incident and the involvement of the appellant in the present case. So far as the other witnesses P.W.-2, P.W.-3 and P.W.-4 are concerned, they have not supported the prosecution case at all and have completely turned hostile, as such no credence can be attached to the testimony and the appellant is liable to be acquitted.
Learned counsel for the appellant has further submitted that though the incident is said to have been taken place on the roof of the house of the appellant yet the prosecution has not produced any witness to establish the fact that at time and place of incident, the appellant was present at his house. None of the prosecution witnesses has stated that at the time of incident, he was seen at or near his house by any of the witnesses, as such no presumption under Section 106 of Indian Evidence Act can be drawn against him. Learned counsel for the appellant has further submitted that except suspicion there is absolutely no evidence to connect the appellant in the present case and mere suspicion howsoever strong it may be cannot take the place of proof as such the finding of conviction recorded by the trial against the appellant is wholly illegal and liable to be set aside by acquitting the appellant. In order to buttress his argument learned counsel for the appellant has drawn the attention of the Court by placing reliance upon the case reported in (2014) 12 SCC 444, Joydeb Patra & Ors. vs. State of West Bengal wherein it has been held that :-
"This Court has repeatedly held that the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged that the accused could prove any fact within his special knowledge under Section 106 of the Indian Evidence Act to establish that he was not guilty. In Sucha Singh Vs. State of Punjab (2001) 4 SCC 375, this Court held:
"We pointed out that under Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference."
Similarly, in Vikramjit Singh Vs. State of Punjab (2006) 12 SCC 306, this Court reiterated:
"Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same.
Learned counsel for the appellant further relying upon the case of Jose @ Pappachan vs. Sub Inspector of Police reported in (2016) 3 JIC 636 (SC) has vehemently urged that in the absence of any persuasive evidence to hold that at the relevant time the accused was present in the house it would be impermissible to cast any burden on him as contemplated under Section 106 of the Evidence Act and in this backdrop also the appellant is liable to be acquitted.
Thus, we are of the opinion that in the absence of any persuasive evidence to hold that at the relevant time the accused was present in the house, it would not be permissible to cast any burden on him as contemplated u/s 106 of the Evidence Act, the finding recorded by the trial court in this respect is, therefore, erroneous and liable to be set aside.
Per contra, learned AGA has submitted that according to the prosecution case the dead body of the victim was found on the roof of the house of the accused at the time of inquest and as per the post-mortem report, the victim had died 12 hours before the time of post-mortem which was done at 4 p.m. on 23.4.2009 from which it is established that the deceased had died in the early morning on 23.4.2009 at about 5 A.M. and the presence of appellant in the early morning at his house is quite natural. The recovery of the blood stained stone of Aata Chakki clearly establishes the fact that the victim was done to death at her house by hitting a heavy stone on her head and presence of appellant in his house in the early morning hours is quite natural, as such a presumption under Section 106 of the Indian Evidence Act can be reasonably drawn against the appellant and it was the appellant, who was the perpetrator of the crime and absconded after causing the death of his own wife. The order passed by the trial court in the light of the said evidence is just, proper and legal and do not call for any interference by this Court and the appeal is liable to be rejected.
We now proceed to evaluate the evidence led by the prosecution in this case to establish the guilt of the appellant on the touch stone of the principle enunciated by the Apex Court in several cases and by this Court.
P.W.-1 informant- Chhitaria in his examination-in-chief before the trial court has supported the prosecution story stating therein that he married his daughter Guddan with Nasir @ Fuddan, who used to ply a riksha and habitual in taking narcotic/psychotropic substance and whatever her daughter used to earn by her hard labour, was snatched by him to fulfil his urged for narcotic/psychotropic substance. On the date of incident on 22.4.2009, he had sent his son Islam to persuade, the appellant however at about 7:00 a.m. he was telephonically informed by his son that he along with his elder sister Maya and Nasir @ Fuddan were sleeping on the roof. In the morning at about 5:00 a.m. his brother in-law asked his younger sister Guddan to part some money for fulfilling his urge for narcotic/psychotropic substance and on refusal by her some quarrel took place between them and in a fit of rage, Nasir @ Fuddan picked up a stone and hit Guddan on her head. The said stone was snatched by him and his daughter Maya however Nasir made his escape good, whereas Guddan died instantaneously. A written report of said incident was drawn by one Islam son of Hammi and on the basis of whic