The burden of proof under Section 106 of the Evidence Act and the significance of failure to provide a satisfactory explanation for the circumstances of the crime.

JUDGMENT :

Pankaj Naqvi, J.

1. This criminal appeal is preferred against the judgment and order dated 28.11.2005 by the Additional Sessions Judge, Court No. 3, Meerut in S.T. No. 814 of 1994 (Case Crime No. 272 of 1993) convicting appellant for life under Section 302 IPC with fine of Rs. 5,000/- and a default sentence of 2 years R.I. under section 201 IPC to 5 years R.I. with fine of Rs. 2500/- and a default sentence of 1 year R.I. All sentences were to run concurrently. PW-2 a neighbour of the victim submitted a written report (Ex. Ka-1) dated 29.4.1993 that previous night at about 7.30 PM, accused-appellant strangulated his wife (victim) to death, cries for help were heard by neighbours and the body taken to the burial ground. On aforesaid information, an F.I.R. dated 29.4.93 (Ext Ka 2A) came to be registered at 11.20 AM under section 302 IPC against the accused-appellant. During investigation names of 3 other accused i.e. Ashfaq, Amir and Sitara Begum also surfaced in the commission of crime.

2. The trial court held that all the links in the chain of circumstances are complete against the appellant in the commission of crime, convicted the accused/appellant but acquitted the other 3 accused. No appeal/revision against acquittal was brought to our notice.

3. Heard Shri Sheshadri Trivedi, the learned Amicus and Shri A.N. Mulla, the learned A.G.A.

4. The learned Amicus made the following submissions:-

(i) F.I.R. is ante-timed and ante-dated

(ii) Prosecution failed to establish that at the time of the occurrence, husband alone was present in the house thus the question of discharging the burden under section 106 of Evidence Act on the part of the accused appellant does not arise.

(iii) It's a case of circumstantial evidence, all links in the chain are not established so as to rule out the hypothesis that it was the appellant alone who committed the murder of the deceased inside his house coupled with the acquittal of other 3 accused.

5. Learned A.G.A. opposed the submission.

6. PW-2, a co-villager, not a family member of the deceased is the first informant. He submitted a written report (Ex Ka-1) at the police station intimating the death of the wife of appellant by strangulation attributable to appellant previous night i.e. on 28.4.1993 at 7.30 P.M. and that the appellant was on way to bury her body. He acquired above information on 28.4.1993 PM from one Sadiq (not examined). The written report came to be registered as an F.I.R. (Exbt Ka 2-A) on 29.4.1993 at 11.20 A.M. which is also authenticated in the inquest (Ex Ka-12). The inquest commenced at 12.30 PM to conclude at 1.30 PM. PW-1 and 5, i.e. uncle and a cousin of the victim on receipt of news of death of the victim from Pogal (brother-in-law of victim) on the midnight of 28/29th at Saharanpur, left along with other family members for Baraut by bus at about 9.00 in the morning to reach Baraut bus station on 29th around noon. At Baraut bus station they were informed by members of the community that the body of the deceased has been taken to the burial ground. PW-1 along with others reached the graveyard and noticed froth coming out from the mouth and blood from the nose of the victim. PW-1 has given a sequential detail right from receipt of information regarding the death of his niece and his participation in the inquest at the burial ground. PW-4 for the first time on 29.4.1993 learnt of the unnatural death of his sister after reaching Baraut only. He being a family member of the victim submitted a written report (Exbt Ka-2) implicating the family members of the accused. The police arrived at the grave yard, accused upon coming across the police fled from the scene. The police took the body of the victim in its custody, conducted inquest (Ex Ka-12) at the burial ground in which PW-1 and 4 were witnesses. The inquest indicates that F.I.R. came into existence as F.I.R. is one of the enclosures. Mere absence of case particulars in the inquest does not mean that F.I.R. is ante timed. We