State
of Rajasthan Vs. Kashi
Ram [2006] Insc 753 (7 November 2006)
B.P.
Singh & Tarun Chatterjee B.P. Singh, J
This
appeal by special leave has been preferred by the State of Rajasthan against
the common judgment and order of the High Court of Judicature for Rajasthan at
Jodhpur in D.B. Criminal Appeal No.622 of 1999, D.B. Jail Appeal No.619 of 1999
and D.B. Criminal Murder Reference No.2 of 1999 whereby the High Court by its
impugned judgment and order dated December 21, 1999 allowed the appeals preferred
by the respondent and declined the murder reference made by the learned
Additional Sessions Judge for confirmation of the sentence of death. We notice
that both the criminal appeals were preferred by the respondent herein, one
from jail and the other presented through an advocate. The judgment and order
of the Special Additional District and Sessions Judge (Women Atrocities), Sri Ganganagar
in Sessions Trial No.39 of 1998 dated September 29, 1999 sentencing the petitioner to death
under Section 302 I.P.C. was set aside.
The
respondent herein Kashi Ram was married to Kalawati (deceased) about seven
years before the occurrence. They were blessed with two children, Suman
(deceased) and Guddi (deceased) aged two and half years and two and half months
respectively. It appears from the record that the relationship between them was
not cordial and there were incidents of the respondent assaulting Kalawati and
treating her with cruelty. A Panchayat had also been convened at the house of
the father of the respondent, however, the respondent's father pleaded
helplessness since the appellant did not pay any heed to his advice. The result
was that Kalawati stayed with her parents for about two years. Later Harchand,
father of the respondent assured her parents that Kashi Ram had improved in his
behaviour and, therefore, Kalawati should be sent to her matrimonial home. On
being convinced, Kalawati was sent to her matrimonial home.
The
case of the prosecution is that after some time Kashi Ram again started mis-behaving
in the same old manner and used to beat his wife Kalawati off and on.
The
case of the prosecution is that the respondent killed his wife and two
daughters on the night intervening 3rd and 4th February, 1998 and thereafter disappeared. The
first information regarding the incident was given by Inder Bhan, PW-6, a
cousin of the father of Kalawati (deceased). On the basis of information given
by him, a formal first information report was drawn up and a case registered
against the respondent under Section 302 IPC. The first information was
recorded at 10.15 a.m. on February 6, 1998 in which the informant stated as follows:- The respondent
was married to Kalawati (deceased) about seven years before the occurrence. Kalawati
used to come to her parents off and on in the first six months after marriage
but it appears that there were frequent quarrels between Kalawati and her
husband (respondent herein) who used to complain that she had brought a camel
instead of a buffalo at the time of marriage. He also complained that she was
dark complexioned. Things came to such a stage that Kalawati had to return to
her parents. On the very next day, the informant along with the father of the
deceased and others went to the father of the respondent namely - Harchand and
complained to him about the behaviour of his son. Harchand pleaded helplessness
in the matter and advised them to do whatever they liked, since his son was not
under his control. In these circumstances, Kalawati continued to stay with her
parents for about one and half or two years.
One
day, Harchand, father of the respondent came to the house of the father of Kalawati
and assured him that his son Kashi Ram (respondent herein) had improved in his behaviour
and assured him that she will be cared for in her matrimonial home. The father
of the deceased and other relatives after getting assurance from the brothers
of Harchand decided to send her back to her matrimonial home. The respondent
along with his father Harchand came and the deceased accompanied them to her
matrimonial home. The respondent and his wife Kalawati (deceased) were blessed
with two daughters who were two and half years and two and half months old at
the time of occurrence. The respondent and Kalawati (deceased) resided with the
respondent's parents for some time but about two months before the occurrence
the respondent shifted to a rented premises in Prem Nagar.
Milk
used to be sent to Kalawati's house from her father's house, and her brother Mamraj,
PW-2, used to supply milk everyday.
On February 3, 1998 as usual Mamraj, PW-2 had gone to
supply milk.
His
sister Kalawati told him not to bring milk in future. On the next day, that is
on February 4, 1998 Mamraj PW-2 noticed that the
entrance of the house of the respondent was locked. On enquiry, he was told by
a neighbour Gurdayal Singh that he had seen the respondent and his family
members till last evening but he did not know where they had gone thereafter.
In the
evening at about 5.30
p.m. the mother of Kalawati
(PW- 5) came to the informant and told him that she suspected something, and
therefore, requested him to find out the whereabouts of the respondent and his
family members. The informant went on a motor- cycle along with one Sheo Narayan
(PW-1) to search for the respondent and his family members. On the way, he met
Kashmiri Lal and another son of Harchand on the bridge. On enquiry they told
him that the respondent along with his family members may have gone to the Suratgarh
fair and that they were also waiting for them. In the meantime, Harchand father
of the respondent also came. The informant asked them to come to the house of
the respondent rather than wait on the bridge. Accordingly, they all proceeded
towards the house of the respondent on their respective vehicles, but as soon
as they came near Prem Nagar, the two brothers of accused disappeared from his
sight. At about 7.30
p.m. the informant
came to the house of the respondent and found the main entrance locked. The
doors were got opened and inside the house they found the dead body of Kalawati
lying on a cot and dead bodies of the two children lying on another cot. It
was, therefore, alleged by the informant that the respondent had committed the
murder of his wife and two daughters and had thereafter disappeared.
Dr. Prem
Arora, PW-10 conducted the post mortem examination of the dead bodies of Kalawati
and her two children. On Kalawati he found the following injuries:- "Mark
of ligature present on neck 2cm in width and knot present on back of neck,
ligature mark is situated just below the thyroid certilage and encircling neck
completely. Base of mark is pale, dry and hard. One cut section tissue below
ligature mark is dry and white. No external injury present anywhere in
body".
Death
in his opinion was caused by asphyxia. In his opinion, death of the two
children was also caused by asphyxia. In his opinion, deaths had occurred 48 to
72 hrs. before the post-mortem examination which was conducted on February 7, 1998.
At the
trial several witnesses were examined to prove the case of the prosecution.
PW-1, Sheo Narayan, is the person with whom PW-6 Inder Bhan had gone to search
for the respondent and his family members on the request of the mother of the
deceased namely - PW-5, Jai Kauri. He fully supported the case of the
prosecution to the effect that he had gone with the father of the respondent
and Inder Bhan, PW-5 to the house of the respondent in the evening of February
6, 1998 and after opening the main gate and removing the door from the entrance
of the house they entered the house and found the dead bodies lying on two cots
inside the house.
PW-5,
Jai Kauri, mother of the deceased has also deposed to the effect that her
daughter was treated with cruelty by the respondent.
She
has narrated the incidents which took place before deceased Kalawati was sent
back with her husband to her matrimonial home.
She
has deposed that milk used to be delivered by her son Mamraj, PW-2 at the house
of the respondent and on February
3, 1998 when Mamraj
had gone to deliver milk Kalawati had asked him not to bring milk thereafter
since milk was to be supplied by her husband's elder brother. She claimed that
she had gone to the house of the deceased on Thursday, i.e. on February 5,
1998, but finding the doors locked she had returned. She had made enquiries from
the neighbourers, who told her that they had seen them on Tuesday (February 3, 1998) evening but not thereafter. She
had again gone to her daughter's house on Friday and it was again found locked.
She grew suspicion and, therefore, requested Inder Bhan, PW-6 and Sheo Narayan,
PW-1 to search for them.
PW-2, Mamraj,
a brother of deceased Kalawati has also narrated the incidents relating to the
cruel treatment meted out to Kalawati by her husband. According to this
witness, he used to deliver milk at the house of the respondent, since the
brother of Kashi Ram, who used to supply milk to them, was ill. On February 3, 1998 when he had gone to supply milk he
was told by the respondent and his sister Kalawati (deceased) to stop further
supply of milk. On February
4, 1998 while
returning home he had found the house of Kalawati (deceased) locked. On the
next day, when his mother PW-5, went to the house of Kalawati, she also found
the house locked. The neighbourers had informed them that Kalawati and Kashi
Ram were last seen on Tuesday evening (3.2.1998). When his mother again went to
the house of Kalawati on February
6, 1998 she found the
house locked and, therefore, she had requested Inder Bhan and Sheo Narayan to
search for them. This witness has been cross-examined at length but nothing has
been elicited in his cross-examination which may discredit him. The assertion
of this witness that he has been told by deceased Kalawati and her husband
(respondent herein) on Febraury 3, 1998 to stop supply of milk, went unchallenged
in his cross-examination. Only with a view to assure ourselves that this
witness had also said so in his statement recorded under Section 161 Crl.P.C.
we read his police statement and we find that he had said so even in the course
of investigation. We have looked into the case diary not as substantive
evidence but only to verify whether PW-2 had omitted to say so in the course of
investigation. The substantive evidence of PW-2 that he had seen his sister and
the respondent on February
3, 1998, has gone
unchallenged.
The
prosecution examined two witnesses Dinesh Kumar, PW-3 and Om Prakash, PW-4 to
prove that the respondent had made an extra-judicial confession before these
two witnesses on February
17, 1998. The
prosecution also relied on the evidence of recovery made at the instance of the
respondent pursuant to which a waist chord and keys of the locks put on the two
doors were recovered from the possession of the respondent on February 18, 1998. The prosecution also examined
several other witnesses to prove its case.
The
trial court on an exhaustive consideration of the evidence on record came to
the conclusion that the prosecution had successfully established that the
deceased Kalawati was last seen alive in her house on February 3, 1998 and that Mamraj, PW-2 had seen her
as well as her husband in their rented premises. It also held that the
prosecution had proved that the two doors of the house were found locked on the
morning of February 4,
1998 and that the
concerned prosecution witnesses entered the house after removing the door on February 6, 1998. The house was also found locked on
February 4, 1998 when the mother of deceased Kalawati
had gone to her house. The trial court relied on the recoveries made of the
weapon of offence namely - the waist chord, and the keys of the two locks, from
possession of the respondent pursuant to his statement recorded under Section
27 of the Evidence Act. Reliance was also placed by the trial court on the
extra-judicial confession said to have been made by the respondent before PWs 3
and 4. The trial court also found that the house was found locked on February 4, 1998, and till he was arrested on February 17, 1998, the whereabouts of the respondent
were not known. Even after his arrest he did not offer any explanation and even
at the trial only denied the allegations made against him without offering any
explanation for his absence during the crucial days.
Relying
on these circumstances, and finding that the deaths were homicidal as proved by
the medical evidence on record, the trial court came to the conclusion that the
only inference that could be drawn from the proved facts and circumstances was
that the respondent after committing the murder of his wife and his two
daughters locked the house and disappeared from the scene. He was arrested two
weeks later but failed to give any explanation in defence. Accordingly, the
trial court finding the respondent guilty of the offence punishable under
Section 302 IPC sentenced him to death having regard to the heinous nature of
the crime committed by him in which three innocent lives were lost including
two infants.
On
appeal, the High Court reversed the findings of fact recorded by the trial
court and acquitted the respondent. Before adverting to the other incriminating
circumstances we may at the threshold notice two of them namely - the
circumstance that the respondent made an extra-judicial confession before PWs 3
and 4, and the circumstance that recoveries were made pursuant to his statement
made in the course of investigation of the waist chord used for strangulating Kalawati
(deceased) and the keys of the locks which were put on the two doors of his
house. 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.
The
most important circumstance that the respondent was last seen with the deceased
on February 3, 1998 whereafter he had disappeared and his house was found
locked and that he had offered no explanation whatsoever, was disposed of by
the High Court in one short paragraph observing that there was nothing unusual
if the accused was seen in the company of his own family members in his house.
On such reasoning, the High Court held that the circumstantial evidence relied
upon by the prosecution was not strong enough to sustain the conviction of the
respondent. Accordingly, the High Court allowed the appeals preferred by the
respondent and declined the death reference made by the trial court for
confirmation of the sentence of death.
We
have been taken through the entire evidence on record. The medical evidence on
record clearly proves that the death of Kalawati and her two minor daughters
was homicidal caused by strangulation.
The
cause of death was asphyxia. 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.
Learned
counsel for the State strenuously urged before us that the High Court committed
an apparent error in ignoring the evidence on record which disclosed that the
respondent was last seen with deceased Kalawati in his house on February 3, 1998 late in the afternoon. Thereafter,
he was not seen by anyone and his house was found locked in the morning. The
evidence of PW-5, mother of the deceased Kalawati, and her brother Manraj,
PW-2, clearly prove the fact that the house was found locked on February 4, 1998. The evidence also establishes
beyond doubt that the doors were removed and dead bodies of the deceased Kalawati
and her daughters were found inside the house on February 6, 1998. In these circumstances, the disappearance of the
respondent was rather suspicious because if at all only he could explain what
happened thereafter. He, therefore, submitted that in the facts of the case, in
the absence of any explanation offered by the respondent, an inference must be
drawn against the respondent which itself is a serious incriminating
circumstance against him. He has supported his argument relying upon several
decisions of this Court.
Before
adverting to the decisions relied upon by the counsel for the State, we may
observe that whether an inference ought to be drawn under Section 106 IPC is a
question which must be determined by reference to proved. It is ultimately a
matter of appreciation of evidence and, therefore, each case must rest on its
own facts.
197;
the facts were that the deceased was an employee of a school.
The
appellant representing himself to be the husband of one of the sisters of Gracy,
the deceased, went to the St. Mary's Convent where she was employed and on a
false pretext that her mother was ill and had been admitted to a hospital took
her away with the permission of the Sister in charge of the Convent, PW-5. The
case of the prosecution was that later the appellant not only raped her and
robbed her of her ornaments, but also laid her on the rail track to be run over
by a passing train. It was also found as a fact that the deceased was last seen
alive only in his company, and that on information furnished by the appellant
in the course of investigation, the jewels of the deceased, which were sold to
PW-11 by the appellant, were seized.
There
was clear evidence to prove that those jewels were worn by the deceased at the
time when she left the Convent with the appellant.
When
questioned under Section 313 Cr.P.C., the appellant did not even attempt to
explain or clarify the incriminating circumstances inculpating and connecting
him with the crime by his adamant attitude of total denial of everything. In
the background of such facts, the Court held:- "Such incriminating links
of facts could, if at all, have been only explained by the appellant, and by
nobody else, they being personally and exclusively within his knowledge. Of
late, courts have, from the falsity of the defence plea and false answers given
to court, when questioned, found the missing links to be supplied by such
answers for completing the chain of incriminating circumstances necessary to
connect the person concerned with the crime committed (see State missing link
to connect the accused appellant, we find in this case provided by the blunt
and outright denial of every one and all the incriminating circumstances
pointed out which, in our view, with sufficient and reasonable certainty on the
facts proved, connect the accused with the death and the cause for the death of
Gracy".
8 SCC
311; the facts proved at the trial were that the deceased boy was brutally
assaulted by the appellants. When one of them declared that the boy was still
alive and he should be killed, a chhura blow was inflicted on his chest.
Thereafter, the appellants carried away the boy who was not seen alive thereafter.
The appellants gave no explanation as to what they did after they took away the
boy. The question arose whether in such facts Section 106 of the Evidence Act
applied. This Court held:
"In
the absence of an explanation, and considering the fact that the appellants
were suspecting the boy to have kidnapped and killed the child of the family of
the appellants, it was for the appellants to have explained what they did with
him after they took him away. When the abductors withheld that information from
the court, there is every justification for drawing the inference that they had
murdered the boy. Even though Section 106 of the Evidence Act may not be
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 like the
present, where the prosecution has succeeded in proving facts from which a
reasonable inference can be drawn regarding death. The appellants by virtue of
their special knowledge must offer an explanation which might lead the Court to
draw a different inference".
Inspector
of Police, Chennai (2003) Vol. 1 SCC 534, the prosecution established the fact
that the deceased was seen in the company of the appellants from the morning of
March 5, 1985 till at least 5 p.m. on that day when he was brought to his
house, and thereafter his dead body was found in the morning of March 6, 1985.
In the background of such facts the Court observed:
"Therefore,
it has become obligatory on the appellants to satisfy the court as to how,
where and in what manner Vadivelu parted company with them. This is on the
principle that a person who is last found in the company of another, if later
found missing, then the person with whom he was last found has to explain the
circumstances in which they parted company. In the instant case the appellants
have failed to discharge this onus. In their statement under Section 313 CrPC
they have not taken any specific stand whatsoever".
It is
not necessary to multiply with authorities. The principle is well settled. 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. The
principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218.
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.
Counsel
for the respondent submitted that no reliance can be placed on the evidence of Mamraj,
PW-2, the brother of the deceased, who stated that when he had gone to the
house of the deceased on February 3, 1998 he had seen his sister as well as the
respondent in the house and he was asked not to bring milk thereafter since
alternative arrangement had been made. This statement of Mamraj, PW-2 was not
even challenged in his cross-examination. Even in the course of investigation Mamraj,
PW-2 had made a statement to the same effect. It cannot therefore, be said that
he had introduced this fact for the first time at the trial. Learned counsel
submitted that the aforesaid statement of PW-2 was not specifically put to the
accused when he was examined under Section 313 Cr.P.C.. That may be so, but in
the facts of the case, we find that by such omission no prejudice has been
caused to the appellant. Mamraj, PW-2 had deposed in his presence and was
exhaustively cross-examined by counsel appearing for him. The statement of Mamraj,
PW-2 regarding his having seen the deceased last in the company of the
respondent was not even challenged in his cross-examination. Moreover, from the
trend of the answers given by the respondent in his examination under Section
313 Cr.P.C., it appears that the respondent made only a bald denial of all the
incriminating circumstances put to him, and had no explanation to offer.
It was
then submitted on behalf of the respondent that the neighbourers who had stated
that they had seen the respondent and deceased Kalawati on the evening of February 3, 1998 were not examined by the
prosecution. In view of the evidence of PW-2, Mamraj who proved this fact, the
non-examination of those witnesses does not have any adverse effect on the case
of the prosecution. It was also submitted that there is no evidence to show
that the respondent No.1 was absconding after the occurrence. From the facts
proved on record it is established that on February 4, 1998 the house was found locked. The
same was the position on February
5, 1998.
when
PW-5, Jai Kauri, mother of deceased Kalawati visited the house of her daughter
and found the house locked. Finding the house also locked on February 6, 1998, she became anxious to know about
the welfare of her daughter and, therefore, she went to the informant, PW- 6
and requested him to find out the whereabouts of her daughter Kalawati and
members of her family. These facts clearly prove that while the doors of the
house of the respondent were locked, he was nowhere on the scene. The fact that
PWs-1 and 6 went in search of the respondent and the deceased and their
children, and were informed by the respondent's brother that he may have gone
to Suratgarh fair, also points in the same direction. Obviously, therefore he
was absconding after commission of the offence. In fact, he never appeared on
the scene till his arrest on February 17, 1998.
There is, therefore, abundant evidence to prove that the respondent was
traceless between February
4, 1998 and February 17, 1998. Reliance of Tamil Nadu (2006) 3
SCC 161, is of no avail in the facts and circumstances of this case.
It was
lastly submitted that in his examination under Section 313 Cr.P.C. though the
circumstance regarding his having been seen on the evening by his neighbourers
on February 3, 1998 was put to the respondent accused, the name of PW-2 was not
mentioned as a person who had also seen him on that day with the deceased. The
fact remains that the incriminating circumstance was put to the accused and his
response was a bald denial. We do not find that any prejudice was caused to the
respondent by not mentioning the name of PW-2, when the incriminating
circumstance appearing against him was put to him.
In the
facts and circumstances of the case, we are satisfied that this appeal ought to
be allowed. The High Court completely brushed aside the most incriminating
circumstance which was proved by the prosecution namely - that the respondent
was last seen with his wife on February 3, 1998 whereafter the house was found
locked and the respondent was not to be seen anywhere. He continued to be
traceless till February
17, 1998 when he was
arrested. The respondent did not offer any explanation in defence and his
response to all the incriminating circumstances put to him in his examination
under Section 313 Cr.P.C. was a bald denial.
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.
The
respondent has not pleaded alibi, nor has he given an explanation which may
support his innocence.
We are
aware of the fact that we are dealing with an appeal against acquittal, but
having appreciated the evidence on record we have come to the conclusion that
the High Court has completely given a go bye to the most important
incriminating circumstance which appeared against the accused respondent. 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. The respondent may have
been released pursuant to order of this Court dated 1.9.2000 issuing bailable
warrant of arrest. His bail bonds are cancelled and he is directed to be taken
into custody forthwith to serve out his sentence.
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