Suspicion, however strong, cannot form the basis of conviction. The High Court held that “No doubt the death took place in a most unfortunate and ghastly manner. But that itself is not sufficient. The prosecution has to establish beyond reasonable doubt that the person being prosecuted is guilty of the crime. The evidence on record reveals that irrespective of the fact whether entire sale consideration was actually paid or not, the first informant (PW-1) was not satisfied with the sale of land by his father, to the accused. Consequently, when he found his father dead, he suspected involvement of the accused. This is also what he stated in the F.I.R. But suspicion, however strong, cannot form basis of convicting the appellant in absence of satisfactory proof of his guilt.” Rajpal Vs. State Of U.P. [Criminal Appeal No. – 1253 Of 2008]
1. The appeal is directed against the judgement and order dated 16.2.2008, passed by Additional Sessions Judge, Court No.10, Muzaffar Nagar in S.T. No.64 of 2001, convicting and sentencing the appellant under Section 302 IPC to life imprisonment and fine of Rs.15,000/-, in default of payment of fine, one year’s additional simple imprisonment.
2. In brief, according to the prosecution case, Ram Phal (the victim) was father of the first informant Bablu (PW-1). He had sold four bighas of his land to Rajpal (accused-appellant). Appellant did not pay any money for the land but assured the victim that he would later give his tractor, including trolley, a machine and one lakh rupee to him as sale consideration. On 29.6.2001, at about 4:00 p.m. the accused appellant came to the house of the victim and took him alongwith him saying that he would load his tractor with bricks from a nearby brick-kiln and go to Haridwar to sell the same and profit will be apportioned by them equally, as the victim also had half share in the tractor. On 1.7.2001 at about 11:00 p.m. in the night, the accused appellant again came to the informants’ house and informed him that his father had consumed excessive liquor and is gasping for breath, so he should rush and bring his father (the victim) alongwith him to their house. The first informant went to the house of the accused appellant at around 2:00 p.m. in the night. He found that his father Rampal (victim) was lying dead in the tractor trolley. He accordingly made a written complaint on 2.7.2001 at 7:30 a.m. stating that he suspects involvement of the accused-appellant in the murder of his father. It came be registered as Crime Case No.146 of 2001 under Section 302 IPC.
3. The investigation of the case was handed over to Sub Inspector P.K. Singh, who during course of investigation, prepared a site plan. Sub Inspector Har Sharan Sharma completed the inquest proceedings and thereafter the body was sent for post mortem. After completing the investigation, a charge sheet under Section 302 IPC was submitted against the appellant.
4. The trial court framed charge of murder u/s 302 IPC against the accused-appellant on 21.9.2002. The charge was to the following effect: –
“यह कि दिनांक 1.7.01 को समय 11 बजे शाम स्थान ग्राम कुटबी इलाका थाना शाहपुर जिला मुजफ्फरनगर में आपने अभियोगी बबलु के पिता रामपाल को जान से मारने की नियत से शराब पिलाकर किसी चीज से उनकी हत्या कारित की। एतदद्वारा आपने धारा 302 भा०दं०सं० के अन्तर्गत दंडनीय अपराध किया जोकि इस न्यायालय के प्रसंज्ञान में है।”
5. During the course of trial, the prosecution examined the first informant Bablu (PW-1) as a witness of fact. He proved the written Tahrir (Ex. Ka-1). Ved Pal Singh (PW2), Clerk Constable proved the chik report (check report) (Ex. Ka-2), G.D. Entries (Ex. Ka-3), Record Keepers report (Ex Ka-4). The doctor who conducted the post mortem i.e. Dr. Shashi Kumar Agnihotri, Senior Orthopedic Surgeon, District Hospital Rampur was examined as PW-3 and he proved the post mortem report (Ex. Ka-5). Sub Inspector P.K. Singh, the Investigating Officer was examined as PW-4 and he proved the site plan (Ex. Ka-6) and charge sheet (Ex. Ka-7). Sub Inspector Har Sharan Sharma, who was examined as PW-5, proved the inquest report, Chitthi R.I., Chitthi CMO, Photo-lash, chalan-lash as Ex. Ka-8 to Ex. Ka-12 respectively.
6. The accused-appellant was confronted with the incriminating facts and evidence. He denied his involvement but did not lead any oral evidence. He placed on record the original sale deed vide list paper no. 78 Kha.
7. The trial court by the impugned judgment and order convicted and sentenced the appellant under Section 302 IPC, aggrieved whereby, the instant appeal has been filed.
8. Learned counsel for the appellant Sri Sukhvir Singh, assailed the impugned judgment by contending that –
(a) The appellant has been convicted on more suspicion. There was no cogent evidence to establish the guilt of the appellant.
(b) There was no direct evidence against the appellant. The prosecution tried to establish the guilt of the appellant by circumstantial evidence, but utterly failed to exclude other possible hypothesis.
(c) The prosecution had failed to establish complete chain of evidence, consequently, there are sufficient grounds for the conclusion inconsistent with the guilt of the accused.
(d) The circumstances itself on basis of which the prosecution tried to establish the guilt were not proved. There is no convincing evidence to establish that the accused had visited the house of the victim on the fateful day i.e. 29.06.2001; that he took him alongwith him; that they stayed together for two days and during this period, the victim did not come in company of others; that the accused came to the victim’s house on 1.07.2001 at 11:00 p.m. or any other time to inform PW-1 that his father was lying in tractor trolley at his house.
(e) The prosecution had utterly failed to prove that how the victim has received such injuries and how it was possible for the appellant to inflict such injuries; whether the injuries were inflicted at the place where tractor trolley was found parked with the body of the victim lying in it or at some other place; if it was at the said place which was in midst of village abadi, how nobody else could come to know of it.
(f) The statement of PW-3 (doctor) itself indicates that such injuries could be sustained by fall from tractor. There was no evidence to indicate whether it was an accidental death or a case of homicidal death.
(g) The charge that the victim was murdered after making him drunk was not proved, as no trace of liquor was found during post mortem nor the viscera was preserved to establish the said charge.
(h) There are material contradictions in the statements of PW-1 and other witnesses regarding various important facts which leads to serious suspicion about the truthfulness of his deposition. The tractor trolley was found parked on public road, accessible to general public, and does not rule out other possibilities being the cause of victim’s death.
(i) The presumption under Section 106 of the Evidence Act does not get attracted and the prosecution is not relieved of its burden to prove the guilt of the appellant beyond reasonable doubt.
(j) The prosecution story that appellant came to the house of the victim at 11:00 p.m. in the night on 1.7.2001 to inform the family about the serious condition of victim but still they went to enquire about him after three hours i.e. at 2:00 p.m. in night is wholly unnatural. No person would wait for three hours after coming to know that his family member is in need of urgent medical help.
9. On the other hand, learned AGA Sri S.A. Murtaza submitted that –
(a) the trolley on which the body was lying belonged to the accused, thus the burden was upon him to furnish explanation regarding death of the victim.
(b) as per site plan, the place where tractor trolley was found parked, was barely 30 yards from the house of the appellant. It is admitted by PW-4 P.K. Singh, Investigating Officer that open land in front of house of victim belongs to him. Therefore, the presumption under Section 106 of the Evidence Act would be attracted to the facts of the instant case.
(c) the trial court has rightly held that there was clear motive to eliminate the victim so that the appellant is relieved of the liability to pay sale consideration for the land purchased by him; that the appellant had committed the crime in a most gruesome manner and deserves no sympathy from this Court.
10. We have carefully gone through the record of the case and given thoughtful consideration to the contentions of learned counsel for the parties.
11. The present case is one in which there is no ocular evidence. The prosecution case rests entirely on circumstantial evidence.
12. The law on bringing home the guilt in criminal cases by circumstantial evidence was succinctly laid down by the Supreme Court in Hanumant Vs. State of Madhya Pradesh, AIR 1952 SC 343 as follows:-
“12. It is well to remember that in cases where the evidence in of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and pendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”
13. The principles enshrined in Hanumant have been consistently followed and applied by the Supreme Court in all later decisions. In Sharad Birdhi Chand Sarda Vs. State of Maharashtra, 1984 (4) SCC 116, heavily relied upon by learned counsel for the appellant, the Supreme Court summed up the law on the subject by laying down “panchsheel” i.e. five golden principles, as follows:-
“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade and another Vs. State of Maharashtra 1973 2 SCC 793 where the observations were made :
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”
14. The trial court took into consideration three circumstances in holding the appellant guilty. They are:
(a) The victim Rampal had sold four bigha of his land to accused Rajpal who did not pay any money for the same;
(b) On 29.6.2001 at 4:00 p.m. accused Rajpal took Rampal (victim) alongwith him to Haridwar on the pretext that they would carry bricks from a bhatta (brick-kiln) for sale to Haridwar and will divide the sale proceeds equally; and
(c) On 1.7.2001 at 11:00 p.m. accused Rajpal came to the house of the informant and told him that his father Rampal (victim) had consumed excessive liquor and is breathing with difficulty.
15. The trial court relied predominantly on the testimony of PW-1 (complainant), son of the victim in concluding that the above circumstances stood proved. Under law, there is no impediment in recording finding based on testimony of a single witness in view of Section 134 of the Evidence Act. However, such a witness should fall in the category of ”sterling witness’. The Supreme Court in Rai Sandeep @ Deepu vs. State (NCT of Delhi), (2012) 8 SCC 21, held that – “the sterling witness” should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it.
16. We, therefore, first proceed to determine whether the deposition of PW-1 is of sterling quality and could be accepted for its face value without any further corroboration.
17. PW-1 stated that he knew the accused as he was resident of same village. His father sold four bigha of his land to the accused. The accused promised to pay rupees one lakh and hand over his tractor including trolley and lawn mover, but did not fulfill his promise. The accused came to his house on 29.6.2001 at 4 p.m. At that time, he, his father, mother and sister were present. He took his father along with him promising to take him to Haridwar to sell bricks there and divide the profit among themselves. On 1.7.2001, at about 11 p.m., he came to his house and told him and his mother that the victim had consumed excessive liquor and was having difficulty in breathing. He was lying on tractor-trolley at his house. They should bring him along. When they went to his house, his father was found lying dead in tractor-trolley. He then reported the matter to police. He proved the written Tahrir (Ext. Ka-1). He stated that his father was murdered by the appellant.
18. In his cross examination, he stated that his father sold 0.2508 hectare of his land on 9.2.2001 to the appellant. He denied that he sold it for Rs. 85,000/-. He did not know the amount at which it was sold. Then said, it was sold for one lakh plus tractor-trolley and lawn machine. The accused did not pay any sum. He promised to pay in 10-15 days. In this regard, there was no agreement in writing, but was an oral agreement. He could not disclose the reason why the said fact was not mentioned in the sale deed. He denied the suggestion that no such oral agreement took place between the victim and the accused. He admitted that he nor his father, moved any application before any authority nor initiated any legal proceedings even after expiry of the said period of 10-15 days. He stated that the accused promised to pay the amount and the above goods at his house on 29.06.2001. Till night on 29.06.2001 the victim and the accused did not return nor the money and goods were paid/delivered. Even when the victim and the accused did not return on 30.06.2001, he did not give any information in this behalf to the police. He failed to disclose any reason for the above omission on his part. He stated that the tractor trolley was found parked inside the house of the accused. He then stated that tractor trolley was parked in the shahan of the accused’s house. In his written complaint, he mentioned that as soon as he received information from the accused, he alongwith his family went to the spot. But why it is not written in the same, he failed to disclose any reason for the said omission. He then stated that he went at the spot at 2:00 O’clock. He then stated that according to his guess, it was about 2:00 O’clock. Tractor trolley was found parked in front of the gate. He denied that tractor trolley was parked on the road. He stated that blood was oozing out of the victim’s mouth. There were injuries in his arms and legs. The clothes were stained with blood i.e. kurta and paijama. Blood stains were also there on tractor trolley. Victim’s body was taken by the police. He then stated that after leaving the victim’s body on the spot, he along with members of his family Chandra Pal S/o Chauhat Singh, Suresh S/o Kabool went to the police station. Thereafter police came on the spot. The police carried the victim’s body to the police station in his private jeep. The written complaint was dictated by him to Satendra. The police handed over copy of the chik report to him immediately after it registered the complaint. The police went to the place of post mortem in his private jeep. He thereafter carried the victim’s body to the village on the same jeep. The police party did not accompany them to the village. He denied that he had lodged report at police station to take revenge. He denied that the accused had given money or goods as sale consideration for the land sold. He denied that the victim was demanding more money. He stated that the police took in its custody the blood stained kurta and paijama.
19. Here it is apposite to take note of the statement of Investigating Officer, Sub Inspector P.K. Singh (PW-4). He proved the site plan Ext. Ka-6 and charge sheet Ext. Ka-7. He stated that PW-1 did not inform him during course of investigation that when the accused came to his house or that his mother and sister were present in the house. He inspected the spot where the incident took place on 2.7.2001. He stated that in the site plan, the place at which tractor trolley was found parked had been shown with letters XA. He stated that he does not clearly remember whether it was over Kharanja or pucca road but he was sure that tractor trolley was found parked on the road. He stated that he did not record statement of any person in the neighbourhood. He further stated that open land in front of house of victim was owned by him. There was no construction over it. He did not collect any blood from the site. He denied the suggestion that he had not conducted investigation properly or made entries sitting at the police station. He identified the kurta, paijama and baniyan of the victim (material Ext. 1, 2 and 3 respectively). In his cross-examination, he stated that there was no blood stain on the kurta, paijama and baniyan.
20. Sub Inspector Har Sharan Sharma was examined as PW-5. He conducted inquest proceedings. He stated that at the time of inquest, he noticed blood and saliva coming out from the nose and mouth of the victim. There were six injuries on his body. He stated that the body was sent from the site directly for post mortem and was not carried to the police station. Constable Chhatar Pal and Mohd. Harun took the body for post mortem in the tractor trolley. When he reached the spot, he found the body lying on the tractor trolley. The trolley was not found stained with blood. There was no blood found on the ground. He reiterated that the body was taken by tractor trolley. After inquest proceedings, the Inspector went to arrest the accused. Enquiry was made regarding cause of death but no information could be collected. Apart from inquest witnesses, large number of villagers were also present. He denied that proper investigation was not done.
21. It is worthwhile to note here that when the accused was confronted under Section 313 Cr.P.C. with the incriminating circumstances that he took the victim from his house at 4:00 p.m. on 29.6.2001 and again came to his house on 1.7.2001 to inform his son that his fathers’ condition is serious, the accused specifically denied it. According to the first principle laid down in Hanumant and Sharad Birdhi Chand, it is of utmost importance that the circumstances from which the conclusion of guilt is to be drawn, are proved beyond reasonable doubt. Thus, it has to be examined whether the prosecution has succeeded in proving the above noted incriminating circumstances or not.
22. According to PW-1, the victim was taken from his house on 29.6.2001 at 4:00 p.m. by the accused on the pretext that he will carry bricks from brick kiln to Haridwar for sale and would divide the sale proceeds in equal share, as the victim also had half share in the tractor. The victim agreed to the proposal and accompanied him. We may note here that this part of the testimony of PW1 is at variance with the stand taken in the FIR in respect of the said transaction, wherein it was alleged that the accused had promised to part with his tractor, trolley, lawn mover machine and rupees one lakh. Again, PW-1 states that accused came to his house at 4:00 p.m. on 1.7.2001 and informed him that his father had consumed excessive liquor and was having difficulty in breathing; he was lying on tractor trolley at his house; and that he should bring him back home. Now as per prosecution story, even after coming to know of the serious condition of his father, PW-1 went to fetch him at 2:00 p.m. in the night i.e. after three hours. PW-1 has not offered any explanation why he went after three hours, despite being informed about the precarious condition of his father and more particularly, when such place is in the same village. It is against normal human conduct.
23. Moreover, PW-1 stated that when accused came to his house at 4:00 p.m. on 29.6.2001, his mother and sister were also present, but none of them was examined. In villages, generally 4:00 p.m. is the time when cattle starts retreating from the fields. At that time, the villagers generally remain outside their house in connection with daily cores. The prosecution has not examined any villager/neighbour who might have seen the victim in company of the accused.
24. The distance between village Shahpur, which is in district Muzaffar Nagar, is barely 150 km. It would not take more than three hours to reach Haridwar by tractor. Even if the accused and the victim had stayed overnight at Haridwar on 26.9.2001 to materialize sale of bricks, it was expected that they would return on the next date i.e. 30.6.2001. However, it remains unexplained that even when they did not return on the next day, PW-1 did not make any enquiry regarding their whereabouts. The same was position on next day i.e. 1.7.2001 until, as per prosecution version, the accused himself came at 11:00 p.m. in night to inform about the condition of Rampal (victim). The above factors raise suspicion on the truthfulness of the prosecution story. When PW1 was cross-examined on the said aspect, he failed to disclose reason for not making any enquiry. He admitted that he did not even report the matter to the police station. In ordinary course, such behavour seems highly improbable particularly when, as per prosecution story, there was bitterness in relationship between the accused and the victim.
25. Moreover, we find that statements of PW1 on certain important aspects, is not consistent with the testimony of other prosecution witnesses. According to PW-1, he noticed blood stain on the tractor trolley when he reached the place of occurence. He further stated that dead body of his father was taken to police station by the police in his private jeep and thereafter for post mortem in the same jeep and then brought back to the village again in the same jeep. However, according to PW-5 (S.I.), who carried out inquest on the direction of PW-4, there was no blood stain on the tractor trolley or on the ground. He stated that body was sent for post mortem directly without bringing it to the police station. He also stated that it was sent for post mortem on the same tractor trolley in variance to the statement of PW-1 that it was brought to the police station and then sent for post mortem in his private jeep.
26. We thus find that the statement of PW-1 is not beyond doubt. It is not of sterling quality so as to be relied upon without hesitation at its face value. It would not be safe to rely on his sole statement in deciding the truthfulness of the prosecution story.
27. Now, apart from the evidence of PW-1, no other witness of fact was examined to prove the incriminating circumstances noted above. The prosecution has thus failed to prove the most crucial part of its story. It has not been able to establish with certainty that the victim accompanied the appellant to Haridwar on 29.6.2001 or that he informed PW-1 on 1.7.2001 that his father was lying in tractor trolley gasping for breath.
28. As per inquest report, the cause of death was not ascertainable. The post mortem report reveals that there were following ante-mortem injuries:-
“1. Chest flattened anterioposteriorly with abraded contusions on left side of chest and abdomen wound 14×10 cm. On dissection, all ribs from third to tenth on both sides found fractured with badly lacerated pleura, lungs, pericardium also found ruptured with tear in upper part of heart and great vessels. Chest cavity filled with 1.6 litres of blood.
2. Abraded contusions 3×1.5 cm. on back of right shoulder.
3.Lacerated 3×1.5 cm. muscle deep on back of lower side of arm. Clotted blood present.
4. Contusion 29×28 cm. on right side of back of chest and abdomen. On opening liver and spleen found badly lacerated with 1.8 litre of blood in cavity.
5. Abrasion 4×2 cm. contusion on outer part of left hip.
6. Abrasion 7×2 cm. on left buttock.
7. Abrasions 4×2 cm. on front of right knee.”
29. The cause of death, according to post mortem report, was haemorrhage and shock due to ante-mortem injuries. The specific charge against the appellant was that he made the victim consume liquor to murder him. The inquest report and post mortem report do not indicate that he consumed liquor. The viscera was not preserved so as to prove the prosecution case that the victim was made to consume liquor before he was done to death. Dr. S.K. Agnihotri (PW3) who conducted the post mortem was not examined on the said aspect. He stated that injuries could be sustained as a result of fall from tractor; that probable time of death could be 3/4 hours on either side from 8:00 p.m. on 1.7.2001. It means that the victim was alive for more than two days after he left his house. The prosecution has not led any evidence as to whether the tractor was taken to Haridwar or not; whether it was got loaded with bricks for sale at Haridwar as per the programme; whether the accused and the victim were having any sale proceed in their possession or not, as the trolley admittedly was found empty with only victim lying in it. The entire rib-cage was found broken. On dissection, the pleura, lungs, pericardium were found badly ruptured with tear in upper part of heart. The injuries were on both sides of the vertebral column. The person inflicting such serious injuries must have known that it would result in death of the victim. It seems doubtful that such serious injuries would have been inflicted by the victim on the road in front of his home, which as per site plan is surrounded on both side by village abadi. If on the other hand, the injuries were inflicted at some lonely place, it is highly improbable that the accused would bring the victim back to village, place his body on his own tractor in front of his house, then himself go and inform his family. If it was as a result of fall from tractor, it could also be accidental. PW4, the investigating officer, states that no blood stain was found on Material Ext. 1, 2 and 3, i.e. kurta, paijama and vest of the victim. The prosecution has failed to explain how it was possible when the victim has received so serious ante mortem injuries. The prosecution story is shrouded with mystery and does not rule out the possibility as contended by learned counsel for the appellant that some one had placed the body of the victim on the tractor trolley of the appellant after committing the crime, knowing that there was bitterness in their relationship and needle of suspicion would point towards the appellant. The prosecution has utterly failed to rule out other possible hypothesis.
30. We now proceed to examine the submission advanced on behalf of the State that Section 106 of the Evidence Act will come into play as the dead body of the victim was recovered from the tractor trolley of the appellant.
31. Section 106 of the Evidence Act is an exception to the general rule governing the burden of proof. It applies when certain fact is specially within the knowledge of a particular person and is not capable of being known by other persons. In State of West Bengal Vs. Mir Mohammad Umar, 2000 SCC (Cr) 1516, the Supreme Court explained Section 106 of the Evidence Act as follows:-
“36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows : “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
37. The section 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 the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference.”
32. Based on the principle enshrined in Section 106 of the Evidence Act, it was contended by learned A.G.A. that since the appellant was the last person seen in company of the victim, therefore, it would get attracted. It was further submitted that the dead body of the victim was found lying in the tractor trolley which belongs to the appellant and it was found parked inside his house, therefore, burden was upon the appellant to prove his innocence.
33. The theory of ‘last seen’ in criminal cases propounded in context of Section 106 of the Evidence Act has been explained by Supreme Court in State of Rajasthan Vs. Kashi Ram, (2006) 12 SCC 254 as follows:-
“23. 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. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution.”
34. In respect of an offence taking place inside the privacy of a house where the accused had the opportunity to plan and commit the offence, it is difficult for the prosecution to find out what happened inside the house. In such a situation, often recourse is taken to Section 106 of the Evidence Act to weigh the evidence. The inmates of the house cannot get away by simply keeping quiet and offering no explanation. However, the initial burden to establish the case still lies on the prosecution. It is only the nature and amount of evidence to establish the charge that is relaxed as compared to other cases of circumstantial evidence. The said principle has been succinctly laid down by Supreme Court in para 15 in Trimukh Maroti Kirkan Vs. State of Maharashtra reported in (2006) 10 SCC 681 as follows:-
“15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of 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 of a comparatively lighter character. In view of Section 106 of the Evidence Act 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 premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.”
35. The Supreme Court while elucidating the scope of Section 106 of the Evidence Act in Vikramjit Singh Vs. State of Punjab, 2006 (12) SCC 306, sounded a note of caution by observing as follows:-
“14. 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. Of course, there are certain exceptions to the said rule, e.g., where burden of proof may be imposed upon the accused by reason of a statute.
15. It may be that in a situation of this nature where the court legitimately may raise a strong suspicion that in all probabilities the accused was guilty of commission of heinous offence but applying the well-settled principle of law that suspicion, however, grave may be, cannot be a substitute for proof, the same would lead to the only conclusion herein that the prosecution has not been able to prove its case beyond all reasonable doubt.”
36. In the light of above exposition of law on Section 106 of the Evidence Act, we now proceed to examine its applicability to the facts of the instant case. PW-1 alleged that tractor trolley was parked inside the house of the appellant. He then tried to explain his statement and said that it was parked in the sahan of the house. He then stated that it was parked in front of gate inside his house. When confronted, he said that it is false that it was found parked on the road. As per inquest report (Ext. 8), the body was lying in trolley when the police party arrived at the site. The said place is on Titawi – Kutwi road, about 40 yards from the statue of Martyr Rajendra. In the site plan (Ext. Ka 5), the location of tractor trolley has been shown with ‘X’A. The house of the appellant is on the north and then there is open land which, according to the prosecution, is the sahan of the appellant. After open land, there is Titabi Shahpur road. The point ‘X’A where tractor trolley was found parked, is located on the patari of the said road. PW-4 could not clarify whether it was part of pucca road or Kharanja. He, however, stated that it was part of the road and thus while on one hand PW-1 kept making improvement in his statement in an effort to prove that point ‘X’A was part of the house of the appellant but the site plan as well as statement of the Investigating Officer reveals that it was part of road, though in front of the house of the appellant. Point ‘X’A being part of public road was accessible to the public at large. It is for the said reason that large number of villagers were found standing around the tractor trolley when the Investigating Officer visited the site, as admitted by him in his deposition. Thus, even assuming that place of occurrence of crime was where body was found lying, the said place is not inside of the house of the appellant but was accessible to public at large. Consequently, the burden of proof which lies on a person where crime is committed in secrecy inside a house, is not applicable to the facts of the instant case.
37. On the aspect of the appellant being last seen in company of the victim, it has already been held that the prosecution has failed to lead convincing evidence to establish that the accused had taken away the victim from his house at 4 p.m. on 29.6.2001, or came to his house again on 1.7.2001 at 11 p.m. to inform that the victim was lying near his house in a precarious condition. Consequently, the theory of last seen would also not get attracted, nor the provision of Section 106 of the Evidence Act.
38. The trial court has laid much emphasis on the fact that there is no evidence that any sale consideration was paid by the appellant to the victim for purchasing his land and it constituted the genesis of the crime. However, it has lost sight of the fact that sale deed is a registered document and the vendor (victim) had accepted therein about receipt of entire sale consideration in advance. Second, even if it is assumed that sale consideration was not paid or was promised to be paid as set forth in the prosecution story, the murder of the victim would not wipe out the liability of the appellant. He knew very well that his son (the first informant) and wife would be left to enforce the agreement. Thirdly, the appellant was aware that any such act on his part would land him in much greater difficulty. Had he really committed the crime, there was more likelihood of his destroying evidence relating to the crime by dumping the body at some secret place and very little possibility of himself coming to victim’s house to inform his son and wife that they should rush, as the victim needed their help. There are several other possible hypothesis in given situation, which the prosecution has failed to rule out. In the absence of direct evidence, the irresistible conclusion is that the prosecution had failed to prove the guilt of the appellant by circumstantial evidence.
39. No doubt the death took place in a most unfortunate and ghastly manner. But that itself is not sufficient. The prosecution has to establish beyond reasonable doubt that the person being prosecuted is guilty of the crime. The evidence on record reveals that irrespective of the fact whether entire sale consideration was actually paid or not, the first informant (PW-1) was not satisfied with the sale of land by his father, to the accused. Consequently, when he found his father dead, he suspected involvement of the accused. This is also what he stated in the F.I.R. But suspicion, however strong, cannot form basis of convicting the appellant in absence of satisfactory proof of his guilt.
40. In consequence, the appeal has to be allowed and is accordingly allowed. The conviction and sentence of the appellant is set aside. He shall be set at liberty forthwith, if not required in any other case.
41. Office is directed to send copy of this judgment alongwith original record to the court concerned for necessary action and compliance in accordance with law.