IMPORTANT POINT
Adverse inference may be drawn against the accused if does not disclose u/s 313 CrPC the facts which only he could know.

JUDGMENT

NAVIN SINHA, J.

The appellant, husband of the deceased, is aggrieved by his conviction under Section 302 of the Indian Penal Code (in short, ‘IPC’) affirmed by the High Court. There is no eye witness and the case rests only on circumstantial evidence.

2. The deceased was married to the appellant approximately six to seven years back. Both of them were living alone in the house with their minor child. On 14.10.1994, late in the evening, the family members of the deceased, who resided about 35-40 kms. away, received a telephone call that their daughter had died. They came the next morning at 06.00 AM and found the body of the deceased in the middle room of the house, lying on the ground covered with a white sheet. The first information report was lodged at about 07.00 AM, the inquest report was prepared same day as also the post mortem was done in the afternoon. The police after completing investigation submitted charge sheet under Section 306 and 498A, IPC. During the course of the trial, considering the nature of evidence that emerged, the Sessions Judge also added Section 302, IPC in the charges. The Sessions Judge held the charge under Section 302 to be established as the deceased had been strangulated to death. The High Court in appeal opined that the deceased had been hanged to death. Both the courts have unanimously held that the deceased did not commit suicide but that it was a homicidal death.

3. Learned senior counsel Shri Vinay Navare, appearing for the appellant, submitted that the deceased had committed suicide. The conviction of the appellant under Section 302 IPC was not justified. The appellant has been acquitted of the charge under Section 498A.

It was impossible for the appellant to have alone forcibly hanged the deceased from a height of 11 feet. The fact that the body was found lying on the ground in the house, does not detract from the appellant’s defence that she was brought down from the noose after she committed suicide and the body laid on the ground. If the appellant had strangulated the deceased, nothing prevented him from concealing the dead body or cremating her in the night itself. His conduct is not conducive of his guilt. The mere fact that the deceased died in unnatural circumstances inside the matrimonial home cannot by itself be sufficient to shift the onus on the appellant under Section 106 of the Indian Evidence Act, 1872 (hereinafter called as “the Act”). The onus first lies on the prosecution to establish a prima facie case of a homicidal death ruling out all possibilities of a suicide. Reliance was placed on Shambu Nath Mehra vs. The State of Ajmer, 1956 SCR 199; Sawal Das vs. State of Bihar, (1974) 4 SCC 193 and Jose vs. The SubInspector of Police, Koyilandy and Ors., (2016) 10 SCC 519.

4. Shri Sunil Fernandes, learned Addl. Advocate General appearing on behalf of the respondent State, submitted that all the circumstances in the case inevitably point towards the guilt of the appellant. Death was homicidal in nature. The nature of oral, physical and medical evidence completely rules out the defence of a suicide by the deceased.

5. We have considered the submissions on behalf of the parties and have also gone through the evidence and other materials on record. The deceased lived alone with the appellant and their minor child. The evidence of the relatives of the deceased, PW 2, PW 4 and her parents PWs.6 and 8 reveal that all was not well between the appellant and the deceased. Because of the strained relations between them, the deceased had stayed at her parents’ home for nearly 10 months prior to the occurrence and had returned barely a month before the fateful day after her fatherinlaw had come to take her back. We find no reason to disbelieve this part of evidence of PWs. 6 and 8.

6. PW 5 had deposed that he had seen cow dung on the hands of the deceased indicating that she was working when the homicidal assault had been made on her. He deposed having said so in his statement u