2006 Supreme(SC) 1058

2006(9) Supreme 692
SUPREME COURT OF INDIA
(From Rajasthan High Court)
B.P. Singh and Tarun Chatterjee, JJ.
State of Rajasthan - Appellant
versus
Kashi Ram - Respondent
Criminal Appeal No. 745 of 2000
Decided on 7-11-2006
Counsel for the Parties :
For the Appellant : Naveen Kumar, Mukul Sood, S. Gupta, Ms. Shikha Tandon and Aruneshwar Gupta, Advocates.
For the Respondent : Doongar Singh, V.J. Francis, A. Radhakrishann, Anupam Mishra and P.I. Jose, Advocates.

IMPORTANT POINT
If a person is last seen with deceased, he must offer an explanation as to how and when he parted with company and his failure to offer a reasonable explanation itself shall provide an additional link in chain of circumstances.

Headnote:(i) Indian Penal Code, 1860 - Section 302 - Murder of wife and two daughters of respondent by strangulation in their house - Conviction recorded by trial Court on basis of circumstance of deceased last seen in company of accused, extrajudicial confession by accused and recovery of weapon of offence i.e. waist chord and keys of two locks at instance of accused - High Court set aside conviction in appeal and rejected death reference - State appeal - Extrajudicial confession was rightly disbelieved by High Court - No reason for respondent to go and make confession before PW3 and PW4 as there was nothing to show that accused had reasons to confide in them - Evidence appeared to be unnatural and unbelievable - PW6 admitted in cross examination that waist chord which had been used for strangulating deceased was recovered much earlier from scene of offence - Most important circumstance, however, that respondent was last seen with deceased on 3-2-1998 and thereafter he disappeared and house was found locked from out side, was proved by PW2 and PW5, brother and mother of deceased - House had to be opened by removing the door on 6-2-1998 and dead bodies of three deceased were found in side the house - Accused was found absconding till he was arrested on 17-2-1998 - No explanation by accused either during investigation or during trial as where he was between 4-2-1998 and 17-2-1998 - Circumstance provided the missing link in chain of circumstances which proved guilt of accused beyond doubt - Accused was liable to be convicted for murder - He being acquitted by High Court and offence being of 1998, sentence of life imprisonment deserved to be awarded.

       Held : The High Court has disbelieved the evidence led by the prosecution to prove these circumstances and we find ourselves in agreement with the High Court. There was really no reason for the respondent to make a confessional statement before PWs 3 and 4. There was nothing to show that he had reasons to confide in them. The evidence appeared to be unnatural and unbelievable. The High Court observed that evidence of extra-judicial confession is a weak piece of evidence and though it is possible to base a conviction on the basis of an extra-judicial confession, the confessional evidence must be proved like any other fact and the value thereof depended upon the veracity of the witnesses to whom it was made. The High Court found that PW-3 Dinesh Kumar was known to Mamraj, the brother of deceased Kalawati. PW-3 was neither a Sarpanch nor a ward member and, therefore, there was no reason for the respondent to repose faith in him to seek his protection. Similarly, PW-4 admitted that he was not even acquainted with the accused. Having regard to these facts and circumstances, we agree with the High Court that the case of the prosecution that the respondent had made an extra-judicial confession before PWs-3 and 4 must be rejected. 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.(Paras 15 and 16)

       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. (Para 18)

       There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt.(Para 25)

       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.

       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.(Paras 30 and 31)

       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. In the result, we allow this appeal and set aside the impugned judgment and order of the High Court. On the question of sentence, having regard to the fact that the offence took place in February 1998 and the respondent was acquitted by the High Court, we sentence him to imprisonment for life. (Paras 32 and 33)

       (ii) Evidence Act, 1872 - Section 106 - When any fact is especially within knowledge of a person, burden of proving that fact is upon him - If a person is last seen in company of deceased he must offer an explanation as to how and when he parted company - Failure to explain itself shall provide an additional link in chain of circumstances proved against accused.

       Held : 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.(Para 24)