REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1677 OF 2010

KALU alias LAXMINARAYAN  ..........APPELLANT(S)

VERSUS

STATE OF MADHYA PRADESH ......RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

The appellant, husband of the deceased, is aggrieved by

his conviction under Section 302 of the Indian Penal Code (in short,

‘IPC’) affirmed by the High Court.  There is no eye witness and the

case rests only on circumstantial evidence.

2. The deceased was married to the appellant approximately six

to seven years back.   Both of them were living alone in the house

with their  minor child.  On 14.10.1994,  late  in the evening, the

family  members of the deceased,  who resided about  35­40 kms. 1

away, received a telephone call that their daughter had died.  They

came the next  morning at  06.00 AM and  found the body of the

deceased  in the  middle room of the  house, lying  on  the  ground

covered with a white sheet.  The first information report was lodged

at about 07.00 AM, the inquest report was prepared same day as

also the post mortem was done in the afternoon. The police after

completing investigation submitted charge sheet under Section 306

and  498A, IPC.  During the  course  of the trial, considering the

nature of  evidence that emerged, the Sessions Judge also added

Section  302, IPC in the charges.  The  Sessions  Judge  held the

charge under Section 302 to be established as the deceased had

been strangulated to death.  The High Court in appeal opined that

the  deceased had been hanged to  death.  Both  the  courts  have

unanimously  held  that the deceased did not  commit  suicide but

that it was a homicidal death.

3. Learned senior counsel Shri Vinay Navare, appearing for the

appellant, submitted that the deceased had committed suicide. The

conviction of the appellant under Section 302 IPC was not justified.

The appellant has been acquitted of the charge under Section 498A.

2

It was impossible for the appellant to have alone forcibly hanged the

deceased from a height of 11 feet.  The fact that the body was found

lying on the ground in the house, does not detract from the

appellant’s defence that she was brought down from the noose after

she committed  suicide  and the  body laid  on the  ground. If the

appellant  had strangulated  the  deceased,  nothing  prevented him

from concealing the dead body or cremating her in the night itself.

His conduct is not conducive of his guilt. The mere fact that the

deceased died in unnatural circumstances inside the matrimonial

home cannot by itself be sufficient to shift the onus on the

appellant under Section 106 of the Indian Evidence Act, 1872

(hereinafter called as “the Act”).   The onus first lies on the

prosecution to establish a prima facie case of  a homicidal  death

ruling  out  all  possibilities  of  a  suicide.  Reliance was placed on

Shambu Nath Mehra vs.  The State of  Ajmer,  1956 SCR 199;

Sawal Das vs. State of Bihar, (1974) 4 SCC 193 and  Jose vs.

The Sub­Inspector of Police, Koyilandy and Ors., (2016) 10 SCC

519.

3

4. Shri Sunil Fernandes, learned Addl. Advocate General

appearing on behalf of the respondent State, submitted that all the

circumstances in the case inevitably point towards the guilt of the

appellant.  Death was homicidal in  nature.  The nature  of  oral,

physical and medical evidence completely rules out the defence of a

suicide by the deceased.  

5. We have considered the submissions on behalf of the parties

and have also gone through the evidence and other materials on

record.  The deceased lived alone with the appellant and their minor

child.   The evidence of the relatives of the deceased, PW 2, PW 4

and her parents PWs.6 and 8 reveal that all was not well between

the appellant and the deceased.   Because of the strained relations

between them, the deceased had stayed at her parents’ home for

nearly 10 months prior to the occurrence and had returned barely a

month before the fateful day after her father­in­law had come to

take her back.  We find no reason to disbelieve this part of evidence

of PWs. 6 and 8.

4

6. PW 5 had deposed that he had seen cow dung on the hands of

the deceased indicating that she was working when the homicidal

assault had been made on her.   He deposed having said so in his

statement under Section 161, Cr.P.C. When the omission was

pointed out to him in cross examination, he reiterated the same.

This omission in his police statement was put to PW 17, the

Investigating Officer, under Section 145, Cr.P.C. The witness replied

that he did not remember the statement made to him and not that

PW 5 had not made such a statement.   The question was

specifically put to the appellant under Section 313, Cr.P.C. also, to

which he only gave a stock denial.   The only defence taken by the

appellant under Section 313 Cr.P.C. was that he had been falsely

implicated.  The prosecution has  therefore  sufficiently  established

that there was cow dung on the hands of the deceased indicating

that she was engaged in house hold chores when the assault was

made.

7. The inquest report of the deceased noticed that her hair was

open and scattered, both eyes were closed and froth was coming out

of the nose and mouth, the tongue was inside and the teeth visible.

5

The right hand was on the stomach and the left hand was on the

floor with the fist half  open.   There was a  ligature  mark at the

back.  On turning over the body, there was blackening on the back

and in the loin area.  The post mortem report estimated the age of

the deceased as 22 years and noticed the following:

a) Froth marks blood is seen at the mouth and nostrils.

The saliva is seen running out from left side of mouth

and neck is tilted to  left  side.   Ante mortem injuries

were present.   Abrasions varying in left from ¼” to ½”

and varying in  width from 1/8” to  1/4”  situated  on

dorsum of fingers of right hand are present.

b) Abrasions on right forearm, upper dorsum signs ½”

x ½”.  

c)  On dissection of the  subcutaneous at the  ligature

mark, it is  dry,  and  the  M.M.  of troches is red and

congested  and contain forth tinged  with  blood.  The

right chamber of heart contained blood and left

chamber empty.  The tongue caught between teeth.

d) There is well defined ligature mark, situated above

the thyroid cartilage between larynx and chin 1” width

and ½” deep directed obliquely upwards following the

line mandible and reaching the mastoid process.   The

mark is interrupted at the back.  The base of the mark

is pale and hard and the margins are red and

6

congested.  The wound with crust and scan on left knee

which appears to 7 to 12 days old.    

All the injuries  were  ante  mortem  in  nature  opining

that the deceased had died of asphyxia following

hanging.   

8. The injuries on the person of the deceased, as noticed in the

inquest report as also in the post mortem report, are clearly

indicative of a struggle or resistance put up by the deceased in the

last hour.  It is unusual that if the deceased had committed suicide

by hanging herself, her right hand would be lying on the stomach

and the left hand would be on the ground with both fists half open.

This is more of a probability if the deceased was strangulated when

life ebbed out of her slowly.  The fact that the neck of the deceased

was not found stretched and elongated, considering that the body

was still fresh, rules out any possibility of suicide by the deceased.

The tongue was not protruding.  Scratches and abrasions would not

be present in case of a suicide.  There is no fracture or dislocation

of the bones in the neck area.  The saliva was not running down the

face or chest of the deceased but had flowed out at the left of the

mouth. 7

9. The High Court opined that the deceased had been hanged to

death.   Suicide was ruled out as the wooden log in the room used

for storing grains from which a piece of a rope was found hanging

was 11 ft. 2 inches in height from the floor.   The deceased was of

5’4” and assuming that she would stretch out another one foot six

inches it would still  leave gap of 4 feet between her and the log,

therefore suicide was an impossibility.  We find no reason to differ

with the reasoning.  The conclusion of the High Court, to our mind,

also does not help the appellant in the defence of a suicide.   The

views taken by the Trial Court and the High Court nonetheless both

point towards a homicidal death clearly.   We would rather be

inclined to accept the view of the Sessions Court that the deceased

was strangulated to death as it would not also be possible for the

appellant to  hang  the  deceased alone.  The body has  also  been

found lying on the ground.   

10. The aforesaid factors leave us satisfied that the prosecution

has been able to successfully establish a case for a homicidal death

inside the  house  where the  deceased resided  with the  appellant

8

alone.   The conduct of the appellant, in the aforesaid background,

now becomes important.  If the deceased had committed suicide, we

find it strange that the appellant laid her body on the floor after

bringing her down but did not bother to inform anyone living near

him much less the parents of the deceased.   There is no evidence

that the information was conveyed to the  family members of the

deceased by the appellant or at the behest of the appellant.   The

appellant was also not found to be at home when her family

members came the next morning.  The appellant offered no defence

whatsoever with regard to his absence the whole night and on the

contrary PW 3 attempted to build up a case of alibi on behalf of the

appellant, when he himself had taken no such defence under

Section 313, Cr.P.C.

11. The occurrence had taken place in the rural environment in

the middle of the month of October when it gets dark early.

Normally in a rural environment people return home after dusk and

life begins early with dawn.  It is strange that the appellant did not

return home the whole night and was taken into custody on

21.10.1994.   

9

12. In the circumstances, the onus clearly shifted on the appellant

to explain the circumstances and the manner in which the deceased

met a homicidal death in the matrimonial home as it  was a fact

specifically and exclusive to his knowledge.  It is not the case of the

appellant that there had been an intruder in the house at night. In

Hanumant and Ors. vs. State of Madhya Pradesh, AIR 1952 SC

343, it was observed  

“10. …..It is well to remember that in cases where the evidence is 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 tendency 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. In Tulshiram Sahadu Suryawanshi and Ors. vs. State of

Maharashtra, (2012) 10 SCC 373, this Court observed:

10

“23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts.  When inferring the existence of  a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of  natural events,  human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable  doubt,  but it  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. It is useful to quote the following observation in  State of W.B.  v.  Mir Mohammad Omar

“38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In  Shambhu Nath Mehra  v.  State of Ajmer  the learned Judge has stated the legal principle thus:  

11

‘11. 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 pre­eminently or exceptionally within his knowledge.”

14. In Trimukh Maroti Kirkan vs. State of Maharashtra, 2006

(10) SCC 681, this Court was considering a similar case of

homicidal death in the confines of the house.   The following

observations  are considered relevant in the facts  of the  present

case:

“14. If an offence takes place inside the privacy of a  house and  in such circumstances  where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for  the prosecution to  lead evidence to establish the guilt of the accused if the strict principle  of  circumstantial  evidence,  as  noticed above, is insisted upon by  the courts.  A  judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge

12

also presides to see that a guilty man does not escape. Both are public duties.  (See  Stirland  v. Director of Public Prosecutions  — quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of  leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact  is especially  within the  knowledge  of  any  person, the burden of proving that fact is upon him. Illustration  (b)  appended to this section throws some light on the content and scope of this provision and it reads:

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

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

13

there is no duty at all on an accused to offer any explanation.

xxxxxxxx 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.”

15. In view of our conclusion that the prosecution  has clearly

established a prima facie case, the precedents cited on behalf of the

appellant  are  not  considered relevant  in the  facts  of the present

case.  Once the  prosecution established  a  prima  facie  case, the

appellant was obliged to furnish some explanation under Section

313,  Cr.P.C.  with regard to the circumstances  under  which the

deceased met an unnatural death inside the house.   His failure to

offer any explanation whatsoever therefore leaves no doubt for the

conclusion of his being the assailant of the deceased.

16. We find no merit in the appeal.  It is dismissed.  The appellant

is  stated to be on bail.  His  bail  bonds are cancelled and he  is

14

directed to surrender within two weeks for serving out his

remaining period of sentence.

……………………….J.  (NAVIN SINHA)

……….……………..J.    (B.R. GAVAI)   

New Delhi, November 07, 2019

15