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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 357 OF 2005

State of Rajasthan          ….Appellant

versus Thakur Singh          ….Respondent

J U D G M E N T

Madan B. Lokur, J.

1. The  question  for  consideration  is  whether  the  facts  and  

circumstances of the case require the application of Section 106  

of  the  Evidence  Act,  1872  and  if  so,  whether  the  

respondent/accused  is  guilty  of  the  murder  of  his  wife  Dhapu  

Kunwar.  In our opinion, both questions need to be answered in  

the affirmative and the High Court rendered a decision, perverse  

in law, in acquitting Thakur Singh and reversing the decision of  

the Trial Court.

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The Facts  2. According  to  the  first  information  report  (FIR)  lodged  by  Himmat Singh (PW-2), the respondent/accused Thakur Singh was  married to Dhapu Kunwar and they had a daughter aged about  one year. Thakur Singh was working as a labourer or lorry driver in  Ahmadabad. Since he was not feeling well, he was brought to the  family  home in Hingwania in  Rajasthan on 25th February,  1999  where he stayed the whole day.  3. On 26th February, 1999 Thakur Singh’s brother Bagh Singh  

(PW-3) was sent to fetch his brother-in-law Gotu Singh (brother of  

Dhapu Kunwar) who then came to Hingwania.  He seems to have  

stayed  overnight  and  on  27th February,  1999  Gotu  Singh  and  

Thakur Singh were together for most of the day. In the evening at  

about 4.30 p.m. on 27th February, 1999 Gotu Singh went to Gundli  

and stayed there overnight.  He came back to Hingwania the next  

morning (28th February, 1999) at about 7.45 a.m.   

4. However,  before  Gotu  Singh  arrived  in  Hingwania  on  28th  

February,  1999 Thakur  Singh took  his  wife  Dhapu Kunwar  and  

their  daughter  inside  a  room  and  bolted  it  from  within.  

Thereafter, Himmat Singh and Gotu Singh went from Hingwania  

by bus to Chanderiya to meet Thakur Singh’s elder brother Shyam  

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Singh  (PW-1).  While  Gotu  Singh  did  not  return  to  Hingwania,  

Himmat  Singh  returned  along  with  Shyam  Singh.  This  was  at  

about 4.30 p.m.  

5. Throughout the day Thakur Singh had locked himself up in a  

room along with Dhapu Kunwar and their daughter. Other ladies in  

the house, namely, the wife of Bhag Singh, (Chanda Kunwar PW-

18) wife of Pratap Singh (PW-6) and (Pushpa Kunwar PW-20) wife  

of Ram Singh (PW-7) tried to persuade Thakur Singh to open the  

door of the room but he did not do so.  Later in the evening, after  

Himmat  Singh  returned  with  Shyam  Singh,  they  removed  the  

‘kelu’  from  above  the  house  and  it  was  then  discovered  that  

Thakur Singh had killed Dhapu Kunwar.  The door of the house  

was broken open and Thakur Singh was caught and tied by his  

brothers and other relatives.  

6. At about 6.15 p.m. on the same day, that is 28th February,  

1999 Himmat Singh lodged an FIR in the police station giving the  

facts mentioned above. There is a positive assertion in the FIR  

that Thakur Singh had killed Dhapu Kunwar. Soon after the FIR  

was  registered,  the  investigating  officer  Kuber  Singh  (PW-23)  

arrived at  the place of  the occurrence and took charge of  the  Crl. Appeal No. 357 of 2005 Page 3 of 15

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investigations  and  arrested  Thakur  Singh  on  the  basis  of  the  

allegations made in the FIR.

Proceedings in the Trial Court 7. On completion of investigations, Kuber Singh filed a charge  

sheet against Thakur Singh alleging the commission of offences  

punishable under Sections 302, 326 and 324 of the Indian Penal  

Code  (IPC).  The  Upper  District  &  Sessions  Judge  (Fast  Track)  

Chittorgarh who heard the case being Sessions Case No.90/2001  

convicted  Thakur  Singh  and  found  him  guilty  of  an  offence  

punishable under Section 302 of the IPC and sentenced him to  

undergo imprisonment for life and a fine of Rs.1000/-.

8. The Trial Judge found that the prosecution had examined as  

many as 25 witnesses.  Subsequently, on the request of the Public  

Prosecutor  another  witness  was  called  making  a  total  of  26  

prosecution witnesses.  Of these, 14 were the immediate relatives  

of Thakur Singh and all of them turned hostile.

9. The  Trial  Court  found  that  some  basic  facts  were  

nevertheless  brought  on  record.  These  basic  facts  were  that  

Dhapu Kunwar was the wife of Thakur Singh; she was lying dead  

in  the room occupied by her  and Thakur  Singh,  and Dr.  Khem  

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Chand  Saini  (PW-15)  deposed  that  Dhapu  Kunwar  had  some  

injuries on her person but the cause of her death was asphyxia  

and strangulation.

10. The Trial Judge held, on the basis of the evidence on record,  

that no one except Thakur Singh could have caused the death of  

Dhapu Kunwar. He had confined her and their daughter inside a  

room and although no one saw him killing his wife, since the room  

was bolted from inside, he had not opened it for the whole day  

and the  door  had to  be  forced open,  no  one else  could  have  

caused her death. The Trial Judge found that there was nothing to  

suggest that any other person had entered Thakur Singh’s room  

and  there  was  no  possibility  of  anybody  else  having  caused  

Dhapu Kunwar’s death by strangulation.  It  was also noted that  

Thakur  Singh  gave  absolutely  no  explanation  in  his  statement  

under Section 313 of the Code of Criminal Procedure as to how  

Dhapu Kunwar had died of asphyxiation inside their room.

Proceedings in the High Court 11. Feeling aggrieved by the conviction and sentence awarded  

by the Trial Court, Thakur Singh preferred D.B. Criminal Jail Appeal  

No. 500 of 2001 in the High Court of Rajasthan.  By a judgment  

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and order dated 4th August, 2004 (under appeal), the High Court  

found no evidence to link Thakur Singh with the death of Dhapu  

Kunwar.   Accordingly,  the  appeal  was  allowed  and  he  was  

acquitted of the charge of an offence punishable under Section  

302 of the IPC.

12. After the analysis of the evidence, the High Court came to  

the following conclusions:-

(a) There is no evidence that anybody saw Thakur Singh  

entering his room where Dhapu Kunwar had been murdered.  

Also, no one saw him coming out from the room after the  

murder. (b) There  is  no  evidence  that  after  allegedly  having  

murdered Dhapu Kunwar, Thakur Singh came out of his room  

and  was  caught  by  his  relatives  and  handed  over  to  the  

police. (c) There is no evidence that when Thakur Singh came out  

of his room he was in possession of any weapon or that his  

clothes were stained with blood.

13. The  High  Court  also  concluded  that  the  Trial  Judge  was  

swayed by the idea that since Thakur Singh was the husband of  

Dhapu Kunwar, therefore, there was every possibility that he was  

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in  the  house  and  he  continued  to  remain  in  the  house  when  

Dhapu Kunwar  was murdered.   The High Court  concluded that  

though  this  is  a  strong  circumstance,  there  must  be  some  

evidence in support of this circumstance and the best evidence  

would  be  that  of  Gotu  Singh  who  was  not  produced  by  the  

prosecution.  Moreover,  the  main  prosecution  witnesses  (who  

happen to be the relatives of Thakur Singh) had turned hostile.

Discussion and conclusion 14. Questioning the decision of the High Court acquitting Thakur  

Singh, the State of Rajasthan has preferred this appeal.

15. We find that the High Court has not at all  considered the  

provisions of Section 106 of the Evidence Act, 1872.1 This section  

provides,  inter alia,  that when any fact is  especially within the  

knowledge of any person the burden of proving that fact is upon  

him.   

1 106. 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.

Illustrations (a) When a person does an act with some intention other than that which the  

character and circumstances of the act suggest, the burden of proving that intention is  upon him.

(b)  A is charged with travelling on a railway without a ticket. The burden of  proving that he had a ticket is on him.

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16. Way back in  Shambhu Nath Mehra v. State of Ajmer2  

this  Court  dealt  with  the  interpretation  of  Section  106  of  the  

Evidence Act and held that the section is not intended to shift the  

burden of proof (in respect of a crime) on the accused but to take  

care of a situation where a fact is known only to the accused and  

it is well nigh impossible or extremely difficult for the prosecution  

to prove that fact. It was said:

“This [Section 101] 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.”

17. In a specific instance in  Trimukh Maroti Kirkan v. State  

of Maharashtra3 this Court held that when the wife is injured in  

the dwelling home where the husband ordinarily resides, and the  

husband offers no explanation for the injuries to his wife, then the  

2 1956 SCR 199 3 (2006) 10 SCC 681

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circumstances would indicate that the husband is responsible for  

the injuries. It was said:

“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.”

18. Reliance was placed by this Court on Ganeshlal v. State of  

Maharashtra4 in  which case the appellant  was prosecuted for  

the murder  of  his  wife  inside his  house.   Since the death had  

occurred in his custody, it was held that the appellant was under  

an obligation to give an explanation for the cause of death in his  

statement under Section 313 of the Code of Criminal Procedure. A  

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  

was a prime accused in the commission of murder of his wife.  

19. Similarly, in Dnyaneshwar v. State of Maharashtra5  this  

Court  observed  that  since  the  deceased  was  murdered  in  her  4 (1992) 3 SCC 106

5 (2007) 10 SCC 445

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matrimonial home and the appellant had not set up a case that  

the offence was committed by somebody else or that there was a  

possibility of an outsider committing the offence, it was for the  

husband to explain the grounds for  the unnatural  death of  his  

wife.  

20. In  Jagdish  v.  State  of  Madhya  Pradesh6 this  Court  

observed as follows:  

”It  bears  repetition that  the appellant  and the deceased  family members were the only occupants of the room and  it  was  therefore  incumbent  on  the  appellant  to  have  tendered some explanation in order to avoid any suspicion  as to his guilt.”

21. More recently, in Gian Chand v. State of Haryana7 a large  

number  of  decisions  of  this  Court  were  referred  to  and  the  

interpretation  given  to  Section  106  of  the  Evidence  Act  in  

Shambhu  Nath  Mehra  was  reiterated.  One  of  the  decisions  

cited in  Gian Chand  is that of  State of West Bengal v. Mir  

Mohammad  Omar8 which  gives  a  rather  telling  example  

explaining the principle behind Section 106 of the Evidence Act in  

the following words:

6 (2009) 9 SCC 495

7 (2013) 14 SCC 420

8 (2000) 8 SCC 382

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“During  arguments  we put  a  question  to  learned  Senior  Counsel  for  the  respondents  based  on  a  hypothetical  illustration. If a boy is kidnapped from the lawful custody of  his guardian in the sight of his people and the kidnappers  disappeared  with  the  prey,  what  would  be  the  normal  inference if the mangled dead body of the boy is recovered  within a couple of  hours from elsewhere. The query was  made whether upon proof of the above facts an inference  could be drawn that the kidnappers would have killed the  boy. Learned Senior Counsel finally conceded that in such a  case the inference is reasonably certain that the boy was  killed by the kidnappers unless they explain otherwise.”

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.  

23. Applying this principle to the facts of the case, since Dhapu  

Kunwar died an unnatural death in the room occupied by her and  

Thakur  Singh,  the cause of  the unnatural  death was known to  

Thakur Singh. There is no evidence that anybody else had entered  

their room or could have entered their room.  Thakur Singh did  

not set up any case that he was not in their room or not in the  

vicinity of their room while the incident occurred nor did he set up  

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any case that some other person entered the room and caused  

the unnatural death of his wife. The facts relevant to the cause of  

Dhapu Kunwar’s death being known only to Thakur Singh, yet he  

chose not to disclose them or to explain them. The principle laid  

down in Section 106 of the Evidence Act is clearly applicable to  

the  facts  of  the  case  and  there  is,  therefore,  a  very  strong  

presumption that Dhapu Kunwar was murdered by Thakur Singh.   

24. It  is  not  that  Thakur  Singh  was  obliged  to  prove  his  

innocence or prove that he had not committed any offence. All  

that  was required of  Thakur  Singh was  to  explain  the  unusual  

situation, namely, of the unnatural death of his wife in their room,  

but he made no attempt to do this.

25. Learned  counsel  for  Thakur  Singh  referred  to  Mahendra  

Pratap Singh v.  State of Uttar Pradesh9   to contend that  

where  two  views are  possible,  one  held  by  the  Trial  Court  for  

acquitting the accused and the other held by the High Court for  

convicting the accused,  the rule  of  prudence should  guide the  

High Court not to disturb the order of acquittal made by the Trial  

Court. This decision is not at all apposite.  

9 (2009) 11 SCC 334

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26. In our opinion, the High Court has very cursorily dealt with  

the evidence on record and has upset a finding of guilt by the Trial  

Court  in  a  situation  where  Thakur  Singh  failed  to  give  any  

explanation whatsoever for the death of his wife by asphyxia in  

his room.  Moreover, the very fact that all the relatives of Thakur  

Singh  turned  hostile  clearly  gives  room  for  suspicion  and  an  

impression that there is much more to the case than meets the  

eye. Even the complainant, Himmat Singh who squarely blamed  

Thakur Singh (in the FIR) for the murder of his wife, turned hostile  

to the extent of denying his relationship with Thakur Singh.

27. The  High  Court  expressed  the  view  that  since  the  

prosecution did not produce Gotu Singh as its witness, its case  

ought to fail. In our opinion, Gotu Singh could not have added to  

the case of the prosecution.  He had arrived on the fateful day  

after Thakur Singh had locked himself, Dhapu Kunwar and their  

child in their room. He did not even meet them on the fateful day  

and was oblivious of the events that had taken place that day.  

Therefore, producing him in the witness box would not have been  

of any consequence.   

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28. On a consideration of the facts of the case we are of the  

opinion that the approach arrived at by the Trial Court was the  

correct  approach  under  the  law  and  the  High  Court  was  

completely in error in relying primarily on the fact that since most  

of the material prosecution witnesses (all of whom were relatives  

of Thakur Singh) had turned hostile, the prosecution was unable  

to prove its case. The position in law, particularly Section 106 of  

the Evidence Act was completely overlooked by the High Court  

making it arrive at a perverse conclusion in law.

Conclusion 29. The judgment  and order  passed by  the  High Court  is  set  

aside and that of the Trial Judge restored.  The State should take  

the necessary steps to apprehend Thakur Singh so that he can  

serve out the sentence awarded to him by the Trial Court.

30. The appeal is allowed, as above.

            ………………………………J                      (Madan B. Lokur)

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                    (S.A. Bobde)

New Delhi; June 30,  2014   

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