REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 427 OF 2014

RANJIT KUMAR HALDAR .....APPELLANT(S)

VERSUS

STATE OF SIKKIM .....RESPONDENT(S)

W I T H

CRIMINAL APPEAL NO. 458 OF 2015

J U D G M E N T

HEMANT GUPTA, J.

1) The  present  appeals  arise  out  of  common  judgment  dated November 25, 2011, maintaining conviction and sentence on the

appellants for causing death of Netai Mohanta.     

2) An  FIR  was  lodged  by  Bhola  Mohanta  (PW-1),  brother  of  the deceased, on December 28, 2004. The original FIR was lodged in

Bengali  language  (Exh.  1),  which  was  later  translated in  Nepali

language.  Bhola Mohanta (PW-1) in his statement has stated that

his brother had gone to Rabom Power House at Lachung along with

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his family with the accused Ranjit Haldar to work as Carpenter.  He

further  stated  that  his  deceased  brother,  Netai  Mohanta,  was

murdered by accused Ranjit Haldar along with his nephew Puran

Bandhu Mondal and Mamta Mohanta, wife of  the deceased.  He

also stated that the body of his deceased brother was buried inside

the house at Rabom where they used to stay.   

3) On the basis of his statement, the investigations were undertaken by Rinzing Palzor Bhutia (PW-15).  He deposed that he availed the

services of one Krishna Kanta Burman for translating the contents

of FIR, lodged by Bhola Mohanta, from Bengali language to Nepali

language.   He  visited  the  place  of  occurrence  at  the  house

belonging  to  one  Jamyang  Bhutia  (PW-5)  and  prepared  rough

sketch map and also arranged to take photographs of the place of

occurrence.  Accused Mamta Mohanta was present at the place of

occurrence  who  was  brought  by  Bhola  Mohanta  (PW-1).   The

statement (Exh. 4) of accused Mamta Mohanta was recorded under

Section  27  of  the  Indian Evidence  Act,  18721.   On  the  basis  of

statement, the dead body of deceased Netai Mohanta concealed

underneath  the  wooden  flooring  at  the  place  of  residence  was

recovered after the flooring was removed.  Dr. S.D. Sharma (PW-

12), a medical consultant of STNM Hospital, was also present at the

time of recovery of dead body.  The dead body was found packed in

a gunny bag with its opening tied by a rope.  The body has not

decomposed but dried to certain extent as the weather condition

1  for short, ‘Act’

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at Rabom being cold.  The dead body was identified by Ravi Deb

(PW-3).   The  postmortem report  is  Exh.  27.   The  investigating

officer  took  into  possession  one  plane  (randa),  one  local  made

‘angethi’, one ‘batali’ (carpenter tool) and a lock.  He also took into

possession two gunny bags smeared with mud, two pieces of rope

of different sizes from the place of occurrence.   

4) Learned counsel for the appellants have vehemently argued that the original FIR was recorded in Bengali which was translated in

Nepali  but prosecution has not examined Krishna Kanta Burman

who facilitated translation of the FIR from Bengali to Nepali.  The

prosecution has examined Kumar Tamang (PW-14) who has written

the First Information Report as told by Krishna Kanta Burman.  Still

further, the FIR was not sent to the Magistrate, therefore, the first

version in the FIR is not creditworthy.  Since the foundation itself is

shaky, the entire prosecution story is doubtful.  

5)  Learned counsel for the appellants relied upon the judgment in Sudam Charan Dash v. State of Orissa & Anr.2 to contend that

information to the Magistrate is necessary chain of events in the

investigation.  It is also argued that there is no evidence that the

dead body recovered is that of deceased Netai Mohanta as there

was no DNA examination conducted.  The statements of witnesses

in respect of identification of dead body are discrepant therefore,

the prosecution  cannot  be said to have completed the chain of

2  (2014) 2 SCC 141

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circumstances so as to convict the appellants.   

6) It  is  also  argued by the learned counsel  for  the appellants  that appellants were not residing in the house at the time of recovery of

alleged dead body, therefore, the prosecution has failed to prove

that the house continued to be in possession of the appellants at

the time of recovery of dead body.   

7) The  prosecution  examined Jamyang Bhutia  (PW-5)  who deposed that he has given two rooms in his house on rent to Ranjit Haldar.

He further deposed that he has engaged him in the construction

work of  his  another house.  He deposed that one boy who was

initially residing with the accused left the place.  Later, one more

Carpenter along with his wife and two small children started living

together in the same two rooms.  After residing in his house for less

than a month, they all left the house after locking the door.  He has

not seen them leaving the house.  It is after one month, the Police

came to find out whether any Carpenter was residing in his house.

He  showed  the  house  where  the  Carpenter  was  residing.

Thereafter, the Police along with the female accused came to his

house.  The lady accused standing in the dock pointed the spot

below the wooden floor of the house where the dead body of her

husband was concealed.  The Police removed the wooden planks

from the floor and found the dead body packed in a gunny bag.

The  dead body was  in  a  decomposed state  and  foul  smell  was

coming out therefrom.  The dead body was examined by a Doctor

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present there.  The witness deposed that he does not reside in the

house from where the dead body was recovered.  He lives in a

separate house with his family.  The accused lived for less than a

month in the said house.  The lady accused joined later.  He further

deposed that the door of the house remained under lock and key

till the arrival of the Police.   

8) Ravi Deb (PW-3) is also a Carpenter.  He knew both the accused. He was informed of the death of Nitai Mohanta and was called by

the Police.  The Police in his presence broke open the lock of the

door of a portion of the house.  The appellant Mamta Mohanta was

asked where the dead body of her husband was.  On her pointing

out to a spot under a bed as being the place where dead body of

the deceased was concealed, the Police with the help of persons

present there removed wooden planks.  Under the wooden planks,

there were stones and mud.  After stones and mud was removed, a

dead body found concealed wrapped in a jute gunny bag whose

opening was tied with a string.  The dead body was then brought

out.   He  identified  the  deceased  from  his  wearing  apparels

particularly a sweater and one mala (tulsi) around his neck which

he used to wear and also from the appearance of the face.   

9) Doma  Lepcha  (PW-2)  is  the  Vice  President  of  Kazor  Block Panchayat.  She deposed that one Bhola Mohanta (PW-1) has filed a

written report at his Gram Panchayat in respect of missing of his

deceased brother Netai Mohanta.  Appellant Mamta Mohanta was

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brought by Bhola Mohanta (PW-1).  Mamta Mohanta disclosed that

her husband has been murdered by Ranjit Haldar with ‘randa’ and

the dead body has been concealed in the same rented house in

which they were last residing in North Sikkim.  She also disclosed

that, during the incident, her husband was strangulated with a rope

by Ranjit Haldar and his nephew Puran Bandhu Mondal and she had

helped them.  Doma Lepcha (PW-2) is a witness of extra-judicial

confession of Mamta Mohanta.  In cross-examination, Doma Lepcha

(PW-2) deposed that she knew the deceased Netai Mohanta as he

was staying near her house.     

10) Phurba Lepcha (PW-4) is a resident of Kazor Busty, Mangan and a witness  of  the  disclosure  statement  made  by  Mamta  Mohanta

which led to recovery of dead body.

11) Dr. S.D. Sharma (PW-12) was associated at the time of recovery of dead body.  He deposed that the body was in the advance stage of

putrefaction.  He deposed that time since death was more than two

weeks and the cause of death was combined effect of antemortem

head injury produced by blunt force and antemortem strangulation

by ligature.   The Medical  Legal Autopsy Report is  Exh. 25.   The

postmortem was conducted at the site where the dead body was

recovered.   

12) Bhola  Mohanta  (PW-1)  is  the  brother  of  the  deceased  Netai Mohanta and the informant on whose information the prosecution

was set in motion.  He stated that he does not know English, Hindi

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or Nepali and only knows Bengali.  He deposed that he had never

met Ranjit Haldar earlier.

13) Before we examine respective contentions of the learned counsel for the parties, it would be appropriate to extract Section 106 of

the Act, which reads as under:

“106. Burden of proving fact especially within knowledge. –  When any fact is especially within the knowledge of  any person,  the burden of proving that fact is upon him.”

14) The general rule is that the burden of proof is on the prosecution. Section  106  of  the  Act  was  introduced  not  to  relieve  the

prosecution of their duty but it is designed to meet the situation in

which  it  would  be  impossible  or  difficult  for  the  prosecution  to

establish facts  which are especially  within the knowledge of  the

accused.   

15) In  Shambu Nath Mehra  v.  State of Ajmer3, the Court held as under:

“8. …Section 106 is an exception to Section 101. Section  101  lays  down  the  general  rule  about  the burden of proof.

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.”

Illustration (a) says—

“A desires a court to give judgment that B shall be  punished  for  a  crime  which  A  says  B  has

3  AIR 1956 SC 404

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committed.

A must prove that B has committed the crime.”

9. This  lays  down  the  general  rule  that  in  a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that  duty.  On  the  contrary,  it  is  designed  to  meet certain  exceptional  cases  in  which  it  would  be impossible,  or  at  any  rate  disproportionately  difficult, for  the  prosecution  to  establish  facts  which  are “especially” within the knowledge of the accused and which  he  could  prove  without  difficulty  or inconvenience.  The word “especially” stresses that.  It means  facts  that  are  pre-eminently  or exceptionally  within  his  knowledge.  If  the  section  were  to  be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section,  as  reproduced  in  certain  other  Acts  outside India,  to  mean  that  the  burden  lies  on  an  accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor  [AIR 1936 PC 169] and  Seneviratnev. R. [(1936) 3 All ER 36, 49].

xx xx xx

11. We  recognise  that  an  illustration  does  not exhaust  the  full  content  of  the  section  which  it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available  to  the  prosecution,  should  it  choose  to exercise  due  diligence,  as  to  the  accused,  the  facts cannot be said to be “especially” within the knowledge of  the  accused.  This  is  a  section  which  must  be considered in a commonsense way; and the balance of convenience  and the disproportion of  the labour that would  be  involved  in  finding  out  and  proving  certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The  section  cannot  be  used  to  undermine  the  well established rule of law that, save in a very exceptional

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class  of  case,  the  burden  is  on  the  prosecution  and never shifts.”

16) In another judgment reported as Trimukh Maroti Kirkan v. State of  Maharashtra4,  the  Court considered  a  situation  wherein

accused is alleged to have committed the murder of his wife.  The

prosecution  succeeded in  leading evidence to  show that  shortly

before the commission of the crime, they were seen together or the

offence  takes  place  in  the  dwelling  house  where  the  appellant

normally resided.  The Court held as under:

“22.  Where  an  accused  is  alleged  to  have committed the murder of his wife and the prosecution succeeds  in  leading  evidence  to  show  that  shortly before  the  commission  of  crime  they  were  seen together  or  the  offence  takes  place  in  the  dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission  of  the  crime.  In Nika  Ram v. State  of H.P. [(1972) 2 SCC 80 : 1972 SCC (Cri) 635 : AIR 1972 SC 2077] it was observed that the fact that the accused alone  was  with  his  wife  in  the  house  when she  was murdered  there  with  “khukhri”  and  the  fact  that  the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra [(1992) 3  SCC 106  :  1993  SCC (Cri)  435]  the  appellant  was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 CrPC. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the  commission  of  murder  of  his  wife.  In State  of

4  (2006) 10 SCC 681

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U.P. v. Dr. Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri)  642 :  AIR 1992 SC 2045] the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that he was not at home at that time.  The  letters  written by the  wife  to  her  relatives showed  that  the  husband  ill-treated  her  and  their relations  were  strained  and  further  the  evidence showed  that  both  of  them  were  in  one  room  in  the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court  reversed  the  judgment  of  the  High  Court acquitting the accused and convicted him under Section 302  IPC.  In State  of  T.N. v. Rajendran [(1999)  8  SCC 679 : 2000 SCC (Cri) 40] the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation  to  come to  the  conclusion  that  it  was  the accused  (husband)  who  was  the  perpetrator  of  the crime.”

17) In another Judgment reported as Nika Ram v. State of Himachal Pradesh5, it was held that the absence of any cogent explanation

by the accused would indicate that the accused is responsible for

commission of the crime.  The Court held as under:

“16.  It is in the evidence of Girju PW that only the accused and Churi deceased resided in the house of the accused.  To similar effect are the statements of  Mani Ram  (PW  8),  who  is  the  uncle  of  the  accused,  and Bhagat  Ram  school  teacher  (PW  16).  According  to Bhagat  Ram,  he  saw  the  accused  and  the  deceased together at their house on the day of occurrence. Mani Ram (PW 8) saw the accused at his house at 3 p.m.,

5  (1972) 2 SCC 80

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while  Poshu  Ram  (PW  7)  saw  the  accused  and  the deceased at their house on the evening of the day of occurrence.  The  accused also  does  not  deny that  he was  with  the  deceased  at  his  house  on  the  day  of occurrence.  The  house  of  the  accused,  according  to plan  PM,  consists  of  one  residential  room,  one  other small  room and  a  verandah.  The  correctness  of  that plan is proved by A.R. Verma overseer (PW 5). The fact that the accused alone was with Churi deceased in the house when she was murdered there with the khokhri and the fact that the relations of the accused with the deceased, as would be shown hereafter, were strained would,  in  the  absence  of  any  cogent  explanation  by him, point to his guilt.”

18) In State of Rajasthan v. Thakur Singh6, this Court reiterated the principle  that  burden  of  proving  guilt  of  the  accused  is  on  the

prosecution but there may be certain facts pertaining to a crime

that can be known only to the accused. The Court held as under:

“22.  The law, therefore,  is  quite well  settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are  virtually  impossible  for  the  prosecution  to  prove. These facts need to be explained by the accused and if he  does  not  do  so,  then  it  is  a  strong  circumstance pointing to his guilt based on those facts.”

19) In  Dnyaneshwar  v.  State of Maharashtra7,  this Court held as under:

“10. It  has  not  been disputed  before  us  that  the deceased was murdered in her matrimonial home. It is not  the  case  of  the  appellant  that  the  offence  was committed by somebody else. It is also not his case that there was a possibility of an outsider to commit the said offence. One of the circumstances which is relevant is that when the couple was last  seen in a premises to

6  (2014) 12 SCC 211 7  (2007) 10 SCC 445

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which an outsider may not have any access, it is for the husband to explain the ground for unnatural death of his  wife.  In Raj  Kumar  Prasad  Tamarkar v. State  of Bihar [(2007)  10  SCC  433:  (2007)  3  SCC  (Cri)  716: (2007) 1 Scale 19] this Court held: (SCC p. 440, paras 22-23)

“22.  The  conspectus  of  the  events  which had been noticed by the learned Sessions Judge as also by the High Court categorically goes  to  show  that  at  the  time  when  the occurrence  took  place,  the  deceased  and the  respondent  only  were  in  the  bedroom and the terrace connecting the same. There was no other person. The cause of death of the deceased Usha Devi  i.e.  by a gunshot injury  is  not  disputed.  The  fact  that  the terrace and the bedroom are adjoining each other is not in dispute.

23.  The  autopsy  report  shows  that  ‘a blackening  and charring’  existed so  far  as Injury (i) is concerned. The blackening and charring keeping in view the nature of the firearm,  which  is  said  to  have  been  used clearly go to show that a shot was fired from a short  distance.  Blackening or charring is possible when a shot is fired from a distance of about 2 feet to 3 feet. It, therefore cannot be a case where the death might have been caused by somebody by firing a shot at the deceased from a distance of  more  than  6 feet.  The place of injury is also important. The  lacerated  wound  was  found  over glabella (middle of forehead). It goes a long way to show that the same must have been done  by  a  person  who  wanted  to  kill  the deceased from a short distance. There was, thus,  a  remote  possibility  of  causation  of such type of injury by any other person, who was  not  on  the  terrace.  Once  the prosecution has been able to show that at the  relevant  time,  the  room  and  terrace were in exclusive occupation of the couple, the burden of proof lay upon the respondent to  show  under  what  circumstances  death was  caused to  his  wife.  The  onus  was  on him. He failed to discharge the same.”

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20) In Ram Gulab Chaudhary & Ors. v. State of Bihar8, this Court held as under:

“24. Even otherwise, in our view, this is a case where Section 106 of  the  Evidence  Act  would  apply.  Krishnanand  Chaudhary  was brutally  assaulted  and  then  a  chhura-blow  was  given  on  the chest.  Thus  chhura-blow was given  after  Bijoy  Chaudhary  had said “he is still alive and should be killed”. The appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the appellants. The appellants have given no explanation as to what they did after they took away the body. Krishnanand Chaudhary has not been since  seen  alive.  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.  We,  therefore,  see no substance in this submission of Mr Mishra.”

21)  With this  background,  the argument of  learned counsel  for  the appellants is  that recovery of  dead body was at the instance of

Mamta  Mohanta  and  that  there  is  no  recovery  in  pursuance  of

disclosure statement made by appellant-Ranjit  Haldar.  Therefore,

the  recovery  of  dead  body  on  the  statement  of  wife  of  the

deceased cannot be used against the appellant.  We do not find

any merit in the said argument.  The consistent statement of the

prosecution witnesses such as Jamyang Bhutia (PW-5) corroborated

8  (2001) 8 SCC 311

Page 13 of 16

by Ravi Deb (PW-3) is that the house in Rabom was taken on rent

by the appellant- Ranjit Haldar.  The dead body was recovered in a

gunny bag concealed under the wooden planks covered by mud

and stones.   The cross-examination conducted on the witnesses

does not suggest that the renting of the premises by Ranjit Haldar

is disputed in any manner.  There is no dispute that the lock of the

house was opened by the Police for the first time after Ranjit Haldar

locked the house and went to his native village. Therefore, in the

absence of any question on these aspects that the house was in his

possession and no one had access to that house, the burden of

proving the fact that somebody had access to the house during his

absence  was  on  him in  terms  of  Section  106  of  the  Act.   The

appellant Ranjit Haldar has not even suggested to the prosecution

witnesses of possibility of access to the house rented by him.  The

testimony of Jamyang Bhutia (PW-5) that the house was taken on

rent by Ranjit Haldar is proved and on the basis of statement of

Ravi Deb (PW-3), who is a Carpenter and was residing in the same

area, the appellant Ranjit Haldar has miserably failed to disprove

the presumption under Section 106 of the Act.   

22) In respect of the appellant Mamta Mohanta, there is evidence of recovery of dead body concealed in a house on the basis of her

disclosure statement, where she was allegedly living with the other

appellant  along  with  the  deceased  and  her  two  children.   The

recovery of dead body concealed under the wooden planks covered

by  mud  and  stones  is  very  strong  incriminating  circumstance

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against Mamta Mohanta to maintain her conviction.   Apart  from

such  incriminating  circumstance,  there  is  a  statement  of  Doma

Lepcha (PW-2) before whom she has confessed.  Phurba Lepcha

(PW-4) is the husband of Doma Lepcha (PW-2) who supports this

testimony.   

23) The  argument  that  Krishna  Kanta  Burman who  translated  the Bengali  version  into  Nepali  was  not  examined  when  the  above

mentioned  First  Information  Report  was  lodged  is  wholly

inconsequential.  Such First Information Report was only in respect

of information of death.  The Investigating Officer has carried out

investigation de-hors the version given by the informant in the First

Information Report.  Therefore, non-examination of Krishna Kanta

Burman does not create any doubt on the prosecution case.

24) In  respect  of  an  argument  that  no  DNA Test  was  conducted  to identify  the  dead  body,  is  not  tenable.   The  dead  body  was

recovered on the statement of wife of the deceased who has stated

in  the  disclosure  statement  that  dead  body  of  her  husband  is

concealed under the wooden planks in a room which was in her

possession.  Apart  from  the  said  statement,  Ravi  Deb  (PW-3)

identified the dead body from the wearing apparels of the deceased

such as  sweater  and a  mala.  None of  the  witnesses have been

cross-examined  to  the  effect  that  dead  body  was  not  of  the

deceased.  Therefore, the argument raised is not tenable.  

25) Both  the  Courts  below  have  rightly  recorded  conviction  of  the Page 15 of 16

appellants  as  the  persons  responsible  for  causing  death  of  the

deceased Netai Mohanta.  Consequently, we do not find any error

in  the  judgment  passed  by  the  Courts  below  which  does  not

warrant  any  interference.   Accordingly,  both  the  appeals  are

dismissed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; JULY 25, 2019.

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