Supreme Court of India
BALVIR SINGHversusSTATE OF UTTARAKHAND
- Citation
- 2023 INSC 879
- Decided
- 6 October 2023
- Disposal
- Dismissed
- Bench
- B PARDIWALA
Holding
The conviction for murder under s.302 IPC and dowry harassment under s.498A IPC stands, as the prosecution established a prima facie case and the accused's failure to explain facts especially within his knowledge under s.106 Evidence Act warranted an adverse inference.
Summary
The appellant Balvir Singh was convicted of murder under s.302 IPC and dowry harassment under s.498A IPC, while his mother‑in‑law Maheshwari Devi was convicted of s.498A IPC read with s.34 IPC. The prosecution proved that the victim died from aluminium phosphide poisoning, a fumigant not explainable by her heart medication. The husband, who was the only person present at the time of death, offered no credible explanation for how the poison entered the victim's body, nor could he produce any evidence of taking her to a hospital. The Supreme Court applied Section 106 of the Evidence Act, holding that facts especially within the accused's knowledge must be explained, and that his silence permitted an adverse inference. Consequently, the Court upheld the convictions, dismissed the appeals, and reduced the mother‑in‑law's sentence to time already served.
Issues considered
- The applicability of Section 106 of the Indian Evidence Act to shift the evidential burden to the accused in a murder case.
- Whether the prosecution established a prima facie case sufficient to invoke Section 106.
- Whether the accused's failure to explain the presence of aluminium phosphide constitutes a fatal inference.
- The validity of the conviction for murder and dowry harassment under the IPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 156(3), s. 313
- Dowry Prohibition Act, 1961s. 3, s. 4
- Indian Evidence Act, 1872s. 101, s. 103, s. 106, s. 114
- Indian Penal Code, 1860s. 302, s. 34, s. 498A
Subjects
murderpoisoningaluminium phosphidedowry harassmentSection 106 Evidence Actburden of proofcircumstantial evidenceconvictionappeal
Judgment
[2023] 12 S.C.R. 815 : 2023 INSC 879
CASE DETAILS
BALVIR SINGH
v.
STATE OF UTTARAKHAND
(Criminal Appeal No. 301 of 2015)
OCTOBER 06, 2023
[J. B. PARDIWALA AND PRASHANT KUMAR MISHRA, JJ.]
HEADNOTES
Issue for consideration: The High Court affirmed the judgment and
order of conviction passed by the Trial Court holding appellant-husband
guilty of the offence of murder punishable u/s.302 of the IPC alongwith the
offence punishable u/s. 498A of the IPC and appellant-mother-in-law guilty
of the offence punishable u/s. 498A of the IPC r/w. 34 of the IPC, whether
the High Court committed any error in passing the impugned judgment
and order.
Penal Code, 1860 – s.302, s.498A – Prosecution case was that victim
died due to poisoning – At the time of death only her appellant-husband
was present – Poison was found in the examination of viscera of the
deceased – Appellant-husband had not informed family of victim after
her death – Earlier, victim-deceased had written letters to her family
informing them regarding harassment from her appellant-husband and
appellant-mother-in-law for dowry:
Held: The cause of death was due to poisoning – The poison detected
in the viscera was aluminium phosphide, which is used a fumigant to control
the insects and rodents – Defense of the convicts to say that the presence of
aluminium phosphide in the viscera could be due to the medicines which
the deceased used to take for her heart ailment cannot be accepted – No
evidence led by the appellant-husband that he had taken victim to the hospital
in Delhi – The dubious conduct of the convict-husband of not informing the
family members about the death of their daughter – In the case on hand it
has been established or rather proved to the satisfaction of the court that the
deceased was in company of her husband i.e., the appellant-convict at a point
815
816 SUPREME COURT REPORTS [2023] 12 S.C.R.
of time when something went wrong with her health and therefore, in such
circumstances the appellant-convict alone knew what happened to her until
she was with him – Appellant-convict (husband) has not explained in any
manner as to what had actually happened to his wife more particularly when
it is not in dispute that the appellant-convict was in company of his wife i.e.,
deceased – Although, the appellant-convict tried to project a picture that no
sooner the deceased fell sick than he immediately took her to the Hospital at
Delhi – If it is his case, that his wife was declared dead on being brought at
the hospital then it is difficult to believe that the hospital authorities allowed
the appellant to carry the dead body back home without completing the
legal formalities – The circumstances in the instant case constitute more
than a prima facie case to enable the prosecution to invoke s.106 of the
Evidence Act and shift the burden on the accused husband to explain what
had actually happened on the date his wife died – Section 106 does not cast
any burden upon an accused in a criminal trial, but that, where the accused
throws no light at all upon the facts which ought to be especially within his
knowledge, and which could support any theory of hypothesis compatible
with his innocence, the Court can also consider his failure to adduce any
explanation, in consonance with the principle of the passage in Deonandan
Mishra – The courts would deal with such cases in a more realistic manner
and not allow the criminals to escape on account of procedural technicalities,
perfunctory investigation or insignificant lacunas in the evidence – In result,
both the appeals fail. [Paras 29,52,53,56,61 and 62]
Evidence Act, 1872 – s.106 – Applicability – Meaning of word
“especially”:
Held: s.106 of the Evidence Act provides that when any fact is
especially within the knowledge of any person, the burden of proving that
fact is upon him – The word “especially” means facts that are pre-eminently
or exceptionally within the knowledge of the accused – The ordinary rule
that applies to the criminal trials that the onus lies on the prosecution to
prove the guilt of the accused is not in any way modified by the rule of facts
embodied in s.106 of the Evidence Act – s.106 of the Evidence Act is an
exception to s.101 of the Evidence Act. [Para 34]
Evidence Act, 1872 – s.106 does not absolve the prosecution from
duty of proving crime:
BALVIR SINGH v. STATE OF UTTARAKHAND 817
Held: Section 106 cannot be invoked to make up the inability of the
prosecution to produce evidence of circumstances pointing to the guilt of
the accused – This section cannot be used to support a conviction unless the
prosecution has discharged the onus by proving all the elements necessary to
establish the offence – It does not absolve the prosecution from the duty of
proving that a crime was committed even though it is a matter specifically
within the knowledge of the accused and it does not throw the burden of
the accused to show that no crime was committed. [Para 42]
Evidence Act, 1872 – s.106 – Distinction exists between the burden
of proof and the burden of going forward with the evidence:
Held: Generally, the burden of proof upon any affirmative proposition
necessary to be established as the foundation of an issue does not shift, but
the burden of evidence or the burden of explanation may shift from one
side to the other according to the testimony – Thus, if the prosecution has
offered evidence which if believed by the court would convince them of the
accused's guilt beyond a reasonable doubt, the accused is in a position where
he should go forward with counter-vailing evidence if he has such evidence
– When facts are peculiarly within the knowledge of the accused, the burden
is on him to present evidence of such facts, whether the proposition is an
affirmative or negative one – He is not required to do so even though a
prima facie case has been established, for the court must still find that he
is guilty beyond a reasonable doubt before it can convict – However, the
accused's failure to present evidence on his behalf may be regarded by the
court as confirming the conclusion indicated by the evidence presented
by the prosecution or as confirming presumptions which might have been
rebutted. [Para 46]
Evidence Act, 1872 – s.106 – “Prima facie” in context of s.106:
Held: Section 106 of the Evidence Act would apply to cases where the
prosecution could be said to have succeeded in proving facts from which a
reasonable inference can be drawn regarding death. [Para 48]
LIST OF CITATIONS AND OTHER REFERENCES
Shambhu Nath Mehra v. The State of Ajmer AIR 1956 SC 404 : [1956]
SCR 199; Nagendra Sah v. State of Bihar (2021) 10 SCC 725; Tulshiram
818 SUPREME COURT REPORTS [2023] 12 S.C.R.
Sahadu Suryawanshi and Another v. State of Maharashtra (2012) 10 SCC
373 : [2012] 7 SCR 1083; Trimukh Maroti Kirkan v. State of Maharashtra
(2006) 10 SCC 681 : [2006] 7 Suppl. SCR 156; State of W.B. v. Mir
Mohammad Omar and Others (2000) 8 SCC 382 : [2000] 2 Suppl. SCR
712; Ram Gulam Chaudhary and Others v. State of Bihar (2001) 8 SCC
311 : [2001] 3 Suppl. SCR 279; Deonandan Mishra v. The State of Bihar
AIR 1955 SC 801; Kalu alias Laxminarayan v. State of Madhya Pradesh
(2019) 10 SCC 211 : [2019] 14 SCR 327; Sawal Das v. State of Bihar (1974)
4 SCC 193 : [1974] 3 SCR 74 – relied on.
Leland v. State 343 U.S. 790=96 L.Ed. 1302; Raffel v. U.S. 271 U.S.
294=70 L.Ed. 1054 – referred to.
Smith v. R. 1918 A.I.R. Mad. 111 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
301 of 2015.
From the Judgment and Order dated 24.03.2014 of the High Court of
Uttarakhand at Nainital in CRLA No.273 of 2013.
With
Criminal Appeal No. 2430 of 2014.
Appearances:
Manisha Bhandari, Omkar Shrivastava, Divyadeep Chaturvedi, Ayush
Jain, Dhruv Chandra, Shashwat Sidhant, Advs. for the Appellant.
Jatinder Kumar Bhatia, Krishnam Mishra, Param Kumar Mishra,
Rajeev Kumar Dubey, Kamlendra Mishra, Advs. for the Respondent.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
J. B. PARDIWALA, J.:
1. Since both the captioned appeals arise from a common judgment
and order passed by the High Court dismissing two criminal appeals of two
BALVIR SINGH v. STATE OF UTTARAKHAND 819
[J. B. PARDIWALA, J.]
accused persons tried in one sessions case those were heard analogously
and are being disposed of by this common judgment and order.
2. These appeals are at the instance of two convicts and are directed
against a common judgment and order dated 24.03.2014 passed by the High
Court of Uttarakhand at Nainital in the Criminal Appeal No. 273 of 2013
and Criminal Appeal No. 274 of 2013 respectively by which the High Court
dismissed both the appeals and thereby affirmed the judgment and order of
conviction passed by the Additional District and Sessions Judge Kotdwar,
Garhwal in the Sessions Trial No. 48 of 2008 holding Balvir Singh (husband)
guilty of the offence of murder punishable under Section 302 of the Indian
Penal Code, 1860, (for short, ‘the IPC’) alongwith the offence punishable
under Section 498A of the IPC and Maheshwari Devi (mother-in-law) guilty
of the offence punishable under Section 498A of the IPC read with Section
34 of the IPC.
CASE OF THE PROSECUTION
3. The deceased, namely, Sudha was married to Balvir Singh. The
marriage of the deceased with Balvir Singh was solemnised on 12.12.1997.
In the wedlock a son was born. On 02.06.2007, father of the deceased,
namely, Virendra Singh (PW1) preferred an application in the court of the
Judicial Magistrate First Class, Kotdwar, Garhwal under Section 156(3)
Code of Criminal Procedure, 1973 (for short, ‘the CrPC’), seeking a direction
to the Police to register an FIR in connection with the death of his daughter
in suspicious circumstances. The Judicial Magistrate First Class, Kotdwar,
Garhwal, passed the following order dated 04.06.2006:
“Order
04.06.2006
Applicant Virendra Singh had filed application under section 156(3)
Cr.P.C. for passing order for registration of First Information Report
against accused persons, wherein, applicant has mentioned as under that
marriage of daughter of applicant Sudha had been solemnized on 12.12.1997
with Balvir Singh son of late Mahavir Singh, resident of village Ratanpur,
Kumbhuchau, Halqa-Saneh, Kotdwar, Garhwal at Uttari Jhandichaur, Police
Station Kotdwar and out of their wedlock, one son was born to them. After
sometime from solemnization of marriage Balvir Singh and Smt. Maheshwari
820 SUPREME COURT REPORTS [2023] 12 S.C.R.
Devi mother of Balvir Singh connived together and started harassing my
daughter in different ways and started raising demand of Rs. One lakh cash
in dowry. Applicant’s daughter informed applicant about the same through
letters. Balvir Singh has been working in a Private Nursing Home in Delhi
and he is very well acquainted with medicines. According to the Applicant,
Balvir Singh before committing murder of his daughter managed to arrange
fake prescription slips which he has kept with him. Despite reluctance of
his daughter, on 09.05.07 Balvir left his son at Kotdwar and forcibly took
my daughter Sudha who was in healthy condition to Mangolpuri, Delhi.
Before leaving, Applicant’s daughter expressed her wish to her uncle over
telephone about her reluctance for going to Delhi. On 13.05.07 at about
1.30 o’clock in the night Applicant’s younger brother Harender Singh
received information from Delhi over phone that his daughter Sudha has
all of a sudden left for her heavenly abode in Mangolpuri. Balvir Singh did
not give this information to any of the other family member rather some
neighbour gave this information to the younger brother of Harender Singh;
Shivcharan, who resides in Delhi. Shivcharan visited Mangolpuri in the night
itself, where he came to know that she was in good health on that night and
Balvir Singh after the death of the deceased, took her dead body to his home
at Ratanpur, Kotdwar by private ambulance without giving information to
anyone. When the applicant came to know about this fact, he informed the
police of Police Station Kotdwar. There were reddish injury marks apparent
on the throat of the applicant’s daughter, due to which the Police initiated
inquest proceedings and arranged postmortem of the dead body.
On calling for the report from Police Station on the application filed
by applicant, Police Station has submitted that no First Information Report
is lying registered at Police Station on the basis of facts mentioned in the
application moved by applicant under section 156(3) Cr.P.C Applicant
has filed photocopies of letters written by his daughter and photocopies
of applications lodged by him with Inspector Incharge of Police Station
Kotdwar and Deputy District Magistrate, Kotdwar in court in support of
his application filed under section 156(3) Cr.P.C.
On the basis of documents filed by applicant in support of his
application, prima facie offence seems to be made out. Therefore, in such
circumstances, registration of First Information Report seems to be essential.
BALVIR SINGH v. STATE OF UTTARAKHAND 821
[J. B. PARDIWALA, J.]
Therefore, S.H.O., Police Station Kotdwar is ordered that hiving registered
First Information Report in the light of application filed by applicant under
section 156(3) Cr.P.C and to conduct investigation.
Sd/-
Judicial Magistrate”
4. Pursuant to the aforesaid order passed by the learned Judicial
Magistrate, the First Information Report came to be registered at the
Kotdwar Police Station on 09.06.2007 for the offence punishable under
Sections 302, 498A read with Section 34 of the IPC and Sections 3 and
4 respectively of the Dowry Prohibition Act, 1961 (for short, ‘the Act
1961’). The First Information Report reads thus:
“Sir, Applicant Virendra Singh, son of late Mohan Singh, resident
of Village Mawasa, Patti –Ajmer Pall, Tehsil Kotdwar Garhwal
respectfully submits as under:-
1. That the marriage of my daughter Sudha had been solemnized on
12.12.1997 with Balvir Singh, son of late Mahavir Singh, resident of
village Ratanpur, Kumbhuchaur, Halqa-Saneh, Kotdwar, Garhwal,
from the house of my younger brother located at Uttari Jhandichaur,
Police Station Kotdwar and out of the wedlock, one son was born
to them.
2. That sometime after marriage, Balvir Singh and Smt. Maheshwari
Devi who is the mother of Balvir Singh, in connivance with him,
started harassing my daughter in different ways and raising demand
of Rupees One lakh cash in dowry. Smt. Maheshwari Devi has been
getting pension and also owns landed property. Balvir Singh is a
greedy person and under the greed of pension of his mother, he has
been harassing my daughter and subjecting her to beatings, not
providing food to her, and that the women of the village somehow
provided her food by hiding themselves from these people. My
daughter wrote letters to us complaining about this fact. When
Balvir Singh and his mother came to know about these letters, then
they pressurized my daughter for asking back the said letters and we
accordingly returned those letters, but letter dated 20.05.04 which
has been lodged by us at Police Station, remained with us. In this
822 SUPREME COURT REPORTS [2023] 12 S.C.R.
letter also my daughter has put her grievances and harassment that
she faced.
3. That on getting knowledge of this incident me, my few relatives,
Panch, and Pradhan Ratanpur visited and tried to convince Balvir
Singh and his mother not to indulge in such acts so that in future my
daughter may stay there properly and I did not lodge any report.
However, Maheshwari Devi and Balvir Singh kept on hatching
conspiracy for eliminating my daughter Sudha. Once they had made
my daughter consumed poison also but my daughter had not told this
fact to anyone.
4. That Balvir Singh has been working in a Private Nursing Home
in Delhi and he is very well acquainted with medicines. Before
committing murder of my daughter, he managed to arrange fake
and forged prescription slips, which has been shown to police also,
and investigation about these slips & medicines is required. Despite
reluctance of my daughter on 09.05.07 Balvir left his son at Kotdwar
in healthy condition and took my daughter Sudha at Mangolpuri, Delhi
forcibly. Before leaving, my daughter expressed her unwillingness to
go to Delhi, to my younger brother Harender over telephone.
5. That on 13.05.07 at about 1.30 o’clock in the night my younger
brother Harender Singh received information from Delhi over phone
that my daughter Sudha has left for her heavenly abode all of a sudden
in Mangolpuri. Balvir Singh did not give this information to any of
our family member rather some neighbour gave this information to
the younger brother of Harender Singh; Shivcharan, who resides in
Delhi. Shivcharan visited Mangolpuri in the night, where he came
to know that my daughter was in good health on that night and
Balvir Singh after the death of my daughter, took her dead body to
his home at Ratanpur, Kotdwar by private ambulance without giving
information to anyone. When we came to know about this fact, then
we informed the police of Police Station Kotdwar but we could not
provide all details at that time. As reddish injury marks were apparent
on the neck of my daughter, Police initiated inquest proceedings and
arranged postmortem of her dead body. Sir, I have reason to believe
that the said Maheshwari Devi and her son Balvir Singh have killed
BALVIR SINGH v. STATE OF UTTARAKHAND 823
[J. B. PARDIWALA, J.]
my daughter having hatched a conspiracy and have also induced her
little child also in their favour.
6. That her mother-in law and her husband Balvir Singh caused
inhuman harassment to my daughter which amounts to a heinous
crime. Photocopies of her letters are being annexed herewith. I had
lodged report at Police Station and Deputy District Magistrate also
that she has been killed, but no first information report has not been
registered till now. Therefore, it is prayed to please order police of
Police Station Kotdwar to register First Information Report and get
the offenders punished for the offence committed by them.
Dated : 02.06.07. Applicant - Sd/- Virendra Singh son of late Mohan
Singh, resident of Village Mawasa, Patti –Ajmer Palla, Tehsil –
Kotdwar, District –Pouri Garhwal.
Note: I, HC 14 Kabool Singh Prajapati do hereby certify that copy of
formal report has been recorded word to word which is clearly legible.
Sd/-
HC 14 Kabool Singh
Police Station Kotdwar
Dated : 09.06.07”
5. Upon registration of the FIR, the investigation was carried out.
The dead body of the deceased on being brought from Delhi to Kotdwar,
was sent for post mortem. The inquest panchnama was drawn in presence
of the independent panch witnesses. The statements of various witnesses
were recorded by the investigating officer under Section 161 of the CrPC.
The viscera collected during the course of the post mortem was sent to the
forensic science laboratory. Both the appellants herein were arrested and
remanded to judicial custody.
6. Upon conclusion of the investigation, chargesheet was filed for the
offences enumerated above. To the charge framed by the trial court vide order
dated 21.02.2009, the appellants pleaded not guilty and claimed to be tried.
7. The prosecution led the following oral evidence:
a. PW1 Virendra Singh (Father of the deceased)
824 SUPREME COURT REPORTS [2023] 12 S.C.R.
b. PW2 Dr. Indra Singh Samant, Govt. Hospital (the Doctor who
performed the post mortem)
c. PW3 Harender Singh (Uncle of the deceased)
d. PW4 Balbir Singh (Another uncle of the deceased)
e. PW5 M.M.S. Bisht (Senior Sub Inspector)
f. PW6 Baldev Singh (Panch witness to the inquest proceedings)
h. PW7 Kabool Singh (Head Constable)
8. Prosecution also led documentary evidence as under:
a. Post mortem report Exh.Ka-4
b. Inquest report Exh. Ka-5
c. Two letters written by the deceased to her father i.e., PW1 Exh.
Ka-1 and Ka-2.
9. The appellants herein examined Shivam Rawat the son of the
deceased as a defence witness (DW-1). The appellants also examined
one Anoop Singh cousin brother of the deceased as a defence witness
(DW-2).
10. Upon conclusion of the oral evidence, the further statement of
both the appellants was recorded by the trial court. Two specific questions
were put by the trial court to the convict Balvir Singh and the reply to the
two questions were as under:
“Question No. 14:- Do you have anything else to say?
Answer:- I am innocent. Complainant has lodged a false case.
Question No. 15 :- Poison has been found in the examination of viscera
of the deceased. What do you have to say in this regard?
Answer:- I do not have knowledge as to how the poison has been found,
but the deceased was a heart patient and used to consume medicines.”
11. The mother-in-law of the deceased stated in her further statement
recorded under Section 313 CrPC that she was innocent and had been
falsely implicated.
BALVIR SINGH v. STATE OF UTTARAKHAND 825
[J. B. PARDIWALA, J.]
12. The trial court upon appreciation of the oral as well as documentary
evidence on the record held the husband guilty of the offence of murder
punishable under Section 302 of the IPC and also for causing harassment
punishable under Section 498A of the IPC. The trial court sentenced the
husband to undergo rigorous imprisonment with fine of Rs. 10,000/- The
mother-in-law, namely, Maheshwari Devi came to be acquitted by the trial
court of the offence of murder, however, she stood convicted by the trial
court for the offence punishable under Section 498A of the IPC and was
sentenced to undergo 2½ years of imprisonment.
13. The trial court while holding the appellants guilty of the offence
enumerated above, recorded the following findings:
“21. Deceased died of poison. Although prosecution could not bring
clear evidence that victim was administered poison by accused, but
regarding harassment PW-1 and PW-2 have produced evidence. This
is established by Exhibit A1 and Exhibit A2 too. Moreover, after her
death poison was found in viscera report. However, nothing has been
said by the defence about how it entered the body of the deceased.
Accused statement was registered under section 313 of Criminal
Procedure Code and he was clearly asked that poison was found in
deceased’s visceral examination report, what you have to say about
it? Regarding this accused Balvir Singh said that “I do not have
knowledge how it was found, but deceased was heart patient and
was on medication”. Regarding this, defence examined DW-1 who
is deceased’s son and who said in his examination-in-chief that “my
mother was undergoing treatment at Delhi, where she died”. He further
said “my grandmother and father love me a lot and treated my mother
nicely”. He is a child witness. This witness told that the death of the
deceased took place during treatment but, nothing is said about where
she was undergoing treatment, or how she died. Defence argued that
deceased was a heart patient and because of which death occurred but
this argument is negated by viscera report. DW-2 produced by defence
said in his examination-in-chief that “accused was getting the deceased
continuously treated at Delhi. Deceased Sudha was distressed because
of her illness. Accused use to take care of Sudha. Balvir Singh and
his mother did not harass her, and that she may have done something
826 SUPREME COURT REPORTS [2023] 12 S.C.R.
to herself because of her illness”. This witness produced by defence
has based his evidence on new facts. During cross-examination,
examination of prosecution witness by defence, no question regarding
such matter was asked as to whether the deceased was distressed either
before her illness or because of her illness. DW-1 who is deceased’s
son and on whom defence stressed upon, has not stated anything
regarding the deceased being distressed due to her illness. DW-1 has
only stated that death occurred during treatment, while DW-2 has
based his evidence on new facts which are not concurring with the facts
of defence because they have said that treatment was given at Escorts
Hospital. Regarding this defence has questioned PW-1 that in year
2006 accused paid a bill of rupees 3,82,500/-at Escorts Hospital which
was refuted by him. Regarding this defence has produced documents.
I have examined those documents. Although defence have not proved
those documents but in file page number 48A/2 a document of rupees
3,82,500/-is present which was given by Dr. Nitish Chandra, but said
document is not a bill of payment instead it is an estimate required
for complete checkup and operation, because in the document it is
written that –‘Advance payment may please be made at the time of
admission by case/demand draft in favour of Escorts Heart Institute
and Research Centre Ltd. Payable at New Delhi’. By looking at the
document it is clear that accused and others did not pay any money.
Apart from this there is no document in the file for payment of rupees
3,82,500/-. regarding this there is no statement from defence.
22. Apart from this prosecution witness PW-4’s cross-examination
was conducted. In his cross-examination by defence the witness has
said “it is true that in the inquest report deceased’s husband stated
that my wife after delivery of son, used to remain ill. Often, she had
episodes of unconsciousness. On the night of 13 May 2007 at 10:00
pm, she had an attack and did not regain consciousness. I took her
to Sanjay Gandhi Memorial Hospital, where she was declared dead
by the Doctor”. This witness gave statement in his cross-examination
that deceased died at Sanjay Gandhi Memorial Hospital regarding
which no document was filed. Although this witness in his cross-
examination also admitted that he was told this by Balvir Singh. This
witness is supporting defence, but this witness statement is contrary to
BALVIR SINGH v. STATE OF UTTARAKHAND 827
[J. B. PARDIWALA, J.]
the oral and documentary evidence in the file. If the accused admitted
deceased to Sanjay Gandhi Memorial Hospital after she had an attack
on 13.5.2007, then there are no documents regarding this in the file
and the defence has not given any statement as to this.
23. Defence has argued that deceased Sudha died on 13.5.2007. On
13.5.2007 her last rites were performed and complainant got the case
registered under· section 156(3) on 2.6.2007. Application was filed
very late and this delay has not been. explained. I am not in agreement
with this argument of defence. Victim died on 13.5.2007 and it is said
that on 13.5.2007 her last rites were performed, but on receiving the
news of death prosecution witness immediately put forward his doubt.
In inquest report it is clearly written that deceased Sudha’s death is
suspicious, and postmortem should be done. In above said inquest
report PW-1 is one of the witnesses, he is deceased’s father too. and
was examined as PW1. During evidence witness has said that “Balvir
lives in Mangolpuri at Delhi. Shivcharan was informed by neighbours
that Sudha had died and they brought the dead body to Ratanpur. Next
day I came to Kotdwar. I gave this information to Police station. Then
Police and I came to Ratanpur. There police prepared inquest report. In
inquest report I too was made a witness”. As soon as witness received
this information he raised a suspicion on the incident. Police station
was informed. This witness further said “I wrote a letter to Police
station to investigate into her death. In this regard I made a written
complaint to S.D.M., Kotdwar”. This witness further said “then, with
my lawyer’s help I filed a petition under section156(3) of Criminal
Procedure Code on which court ordered to register a case”. This
witness on receiving information about incident immediately raised
suspicion and asked for a postmortem to be carried out. On 14.5.2007
an application was written to Police station to investigate into the
death of the Deceased. Police made inquest report and conducted
postmortem. In this situation, defence cannot take benefit of the fact that
complaint was registered under section 156(3) of Criminal Procedure
Code, because this witness had informed Police station and S.D.M.
Because of this information given by him to police, police came to
spot and made inquest report.
828 SUPREME COURT REPORTS [2023] 12 S.C.R.
24. In viscera report FSL has detected poison, in such situation the
burden was on accused to prove whether deceased herself consumed
poison and whether the deceased was under mental stress due to
which she might have consumed poison, but defence did not make any
statement of such kind during the whole trial. In the end DW-2 has
presented this evidence that deceased was distressed because of her
illness, but during the whole trial defence argued that deceased was
a heart patient and was on treatment for it. Defence has argued that
deceased was on medication and that because of chemical reaction
medicine can naturally convert into poison, but no evidence was
produced by defence regarding this, and no medical opinion was
taken that deceased was taking medicine of such nature which due to
chemical reaction could convert into poison in the body. As this was
brought up by defence, in such situation burden was on them to prove
it, but no statement was made about it. According to Indian Evidence
Act section 114(g) - that evidence which could be and is not produced
would, if produced, be unfavourable to the person who withholds it.
25. In the presenting case this is argued by defence that because of
chemical reaction medicine can turn into poison in deceased’s body,
therefore the burden of proof was on defence, but regarding this no
evidence was produced by defence. In such situation under section
114(g) it is important to presume that if any evidence was produced
by accused then it would have been against him, because of which
no evidence was produced by defence. But deceased’s death took
place at Delhi. Accused Balvir Singh brought dead body from Delhi
to Kotdwar. PW-1 in his examination-in-chief has said that “it is true
that my daughter was living with accused at Delhi”. On the basis of
statement given by PW-1, deceased’s death took place at Delhi, where
she was living with accused Balvir Singh. On the basis of viscera report
deceased died of poison. At the time of death only accused Balvir
Singh was present. Accused Maheshwari Devi was not in Delhi. Since,
deceased died at Delhi, in such situation charge under, section 302 of
Indian Penal Code is not found against Maheshwari Devi.
26. As far as the question of dowry is concerned, PW-1 and PW-2
have adduced evidence in this matter against accused Balvir Singh
BALVIR SINGH v. STATE OF UTTARAKHAND 829
[J. B. PARDIWALA, J.]
and Shrimati Maheshwari Devi that they are demanding dowry. This
fact is also proved by document letters exhibit A-1 and exhibit A-2
present in the file. Charge under section 498A of Indian Penal Code
against accused Balvir Singh and Shrimati Maheshwari Devi is proved
beyond doubt.
27. After above arguments I have reached the conclusion that
prosecution has proved that accused Balvir Singh and Maheshwari
Devi mistreated and harassed deceased for dowry and demanded
rupees 1 lakh from deceased. Therefore accused Balvir Singh and
Maheshwari Devi are fit to be convicted under section 498A/34 Indian
Penal Code. Because in this incident deceased has died and it has
come up in the evidence that deceased was living with accused Balvir
Singh in Delhi, therefore charge under section 302 of Indian Penal
Code against accused is proved and he is fit to be convicted for the
said charge. As prosecution could not prove that accused Shrimati
Maheshwari Devi was at Delhi with Balvir Singh during the time
of deceased’s death and no role of Maheshawari Devi is proved in
deceased’s death, therefore no charge under section 302 of Indian
Penal Code is proved against Shrimati Maheshwari Devi and therefore,
she is fit to be discharged of the above said charge.”
14. The appellants feeling dissatisfied with the judgment and order
of conviction passed by the trial court went in appeal before the High
Court. The High Court dismissed both the appeals and thereby affirmed the
judgment and order of the conviction passed by the trial court. The High
Court while affirming the judgment and order of conviction passed by the
trial court held as under:
“3. In the chargesheet it was clearly held out that the death, in the
instant case, was by poisoning. No sooner, the death was reported,
PW1, looking at the dead body, insisted for an inquest and the same
was done. In course of inquest, he expressed doubt as to the cause
of death and demanded post-mortem. Accordingly, post-mortem was
done. The doctor, who conducted post-mortem, could not determine
the reason for the death. He, accordingly, preserved a part of the heart
and the viscera of the deceased for the purpose of analysis. Viscera
was sent for analysis and Forensic Science Laboratory, Agra, to whom
830 SUPREME COURT REPORTS [2023] 12 S.C.R.
the same was sent, reported that the same contained poison known as
“Aluminium Phosphide”. All these facts were in the charge- sheet. The
death, according to the chargesheet, had taken place at Delhi, when
A1 alone was present with the victim. It is A1, who caused the dead
body of the victim to be brought to Ratanpuri, Kotdwara. It was not the
contention of A1 that the victim, at any point of time, had any suicidal
tendency or that he suspects that the victim committed suicide. It was
the contention of A1, as is evident from the trend of cross-examination
of the prosecution witnesses, and, in particular, suggestions given to the
prosecution witnesses that the victim was suffering from heart disease,
for that, matter required frequent treatment and administration of
medicine. It was suggested that such medicine, so administered, turned
into the aforementioned poison. That being an assertion on behalf of
A1, it was he, who was required to establish the same by tendering
adequate evidence, which he miserably failed. A dead person, whose
cause of death was by poisoning, was, accordingly, found on the lap of
A1. A1 had special knowledge pertaining thereto. He failed to disclose·
anything in relation thereto. The Court below, in the circumstances,
has taken adverse inference against A 1 under Section 114(g) of the
Evidence Act. We think that the Court below was entitled to take such
inference in the backdrop of the case as depicted above.
4. We, accordingly, find no reason for interference. The Appeal
is dismissed. The judgment of the Court below is affirmed. The
Application (CRMA No. 1744 of 2013) filed for examining applicant
as witness for the defence is not pressed. The same is dismissed. A1 is
in Jail. He will serve out the sentence as awarded by the Court below.
A2 is on bail. Her bail bond is cancelled. She is directed to surrender
forthwith to serve out the sentence awarded against her.”
15. In such circumstances referred to above, the appeals are here before
this Court with the captioned two appeals.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
16. Ms. Manisha Bhandari, the learned counsel appearing for the
appellant vehemently submitted that the trial court as well as the High Court
committed a serious error in holding the appellants guilty of the offence as
enumerated above. It was argued that the case is one of “No Evidence” so
BALVIR SINGH v. STATE OF UTTARAKHAND 831
[J. B. PARDIWALA, J.]
far as the charge of murder is concerned. According to the learned counsel,
the husband was working in Delhi past sometime before the date of incident
whereas the deceased along with her son was staying at their native home
town in the State of Uttarakhand. It was also sought to be argued that the
deceased was not keeping well as she was suffering from a heart ailment.
It was pointed out from the post mortem report as well as from the oral
evidence of the doctor that the deceased had an enlarged heart and the
ailment relating to heart could be the cause of sudden death. The learned
counsel in the alternative put forward the theory of suicide. This theory of
suicide was put forward by the defence on the basis of the fact that poison
was detected in the viscera, in the form of “aluminium phosphide”. An
attempt was made to argue that the deceased might have consumed poison
and committed suicide as she was tired of her ailment.
17. It was also argued that the evidence of the two defence witnesses
would suggest that there was no harassment of any nature to the deceased
either by the husband nor by the mother-in-law. It was also argued that
no sooner the deceased passed away than the husband immediately
informed the family members of the deceased about her sudden death.
It is the husband who carried the dead body from Delhi to his village at
Uttarakhand.
18. It was argued that the entire case hinges on circumstantial evidence.
It is a primary principle that the accused must be and not merely may be
guilty.
19. The learned counsel submitted that the facts which, the prosecution
has so established should be consistent only with the hypothesis of the guilt
of the accused that is to say, they should not be explainable on any other
hypothesis except that the accused is guilty. The circumstances are not of
a conclusive nature and tendency. The circumstances do not exclude every
possible hypothesis except the one to be proved.
20. In the last, the learned counsel submitted that this Court may set
aside the conviction for the offence of murder and substitute the same with
the offence of abetting the commission of suicide punishable under Section
306 of the IPC. It was pointed out that the convict-husband is undergoing
sentence past more than 9 years.
832 SUPREME COURT REPORTS [2023] 12 S.C.R.
21. In such circumstances referred to above, the learned counsel prayed
that there being merit in both her appeals, those may be allowed.
SUBMISSIONS ON BEHALF OF THE STATE
22. Mr. Jatinder Kumar Bhatia, the learned counsel appearing
for the State vehemently submitted that no error not to speak of any
error of law could be said to have been committed by the High Court
as well as by the trial court in holding the appellants guilty of the
respective offences.
23. It was sought to be vehemently argued that the deceased along
with her son was residing at their village whereas the husband was doing
some job in Delhi. The husband on the pretext of medical treatment
of the deceased brought her from the village to Delhi and within three
days of their arrival in Delhi, the incident occurred. It was argued that
if the case put forward by the husband is to be accepted then it is to
be believed that while something went wrong with the deceased, the
husband was very much present because according to the husband he
had immediately taken the deceased to the Sanjay Gandhi Hospital.
On being declared dead at the hospital, he thereafter brought the dead
body to the village.
24. In such circumstances referred to above, the learned counsel
appearing for the State submitted that in view of Section 106 of the
Indian Evidence Act, 1872 (for short, ‘the Evidence Act’ or ‘the Act
1872’), it is for the convict-husband to explain as to what had actually
transpired. It is the convict-husband who could be said to be in special
knowledge of things that might have transpired at the relevant point
of time.
25. It was argued that the presence of poison in the viscera would
indicate that the same had been administered to the deceased in some
manner and no one except the husband could have administered the
poison. It was also argued that there was a strong motive for the
husband to commit the crime. The husband has also been held guilty
of causing lot of harassment to his wife and the same is evident from
the two letters written by the deceased to her father and are exhibited
in the evidence.
BALVIR SINGH v. STATE OF UTTARAKHAND 833
[J. B. PARDIWALA, J.]
26. The learned counsel laid much stress on the fact that both the
appellants have maintained complete silence especially of the facts
which could be said to be within their personal knowledge. The failure
to explain, the circumstances in which the death occurred is sufficient
to hold the convict-husband guilty of the offence.
27. In such circumstances referred to above, the learned counsel prayed
that there being no merit in the appeals those may be dismissed.
ANALYSIS
28. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that falls for
our consideration is whether the High Court committed any error in passing
the impugned judgment and order.
29. We take note of the following circumstances emerging from the
facts on record:
a. The cause of death is due to poisoning. The poison detected in
the viscera was aluminium phosphide. Aluminium phosphide is used as a
fumigant to control the insects and rodents in the foodgrains and fields. It is
too much for the convicts to say that the presence of aluminium phosphide
in the viscera could be due to the medicines which the deceased used to take
for her heart ailment. Such medicines even in high dosage would not lead
to formation of aluminium phosphide in the body. This theory which has
been put forward could be termed as something very absurd. No particular
question in this direction has been put to the expert witness (doctor) while
he was in the witness box. In such circumstances, the only inference that
can be drawn is that aluminium phosphide either in the liquid form or in
the form of tablets was procured by the accused husband and the same was
administered to the deceased.
b. We completely rule out the theory of suicide as sought to be put
forward on behalf of the appellants
c. If it is the case of the convict-husband that he had taken the
deceased to the Sanjay Gandhi Hospital at Delhi then he should have led
some evidence to indicate how she was taken to the hospital, in what type
of vehicle and who attended the deceased at the hospital? In the case of the
834 SUPREME COURT REPORTS [2023] 12 S.C.R.
present type, it is very difficult to believe that if the deceased had been taken
to the hospital and declared dead on arrival, the hospital authorities would
allow the convict-husband to carry the dead body of his wife back home. It
would become a medico-legal case and the hospital would definitely inform
the police.
d. The dubious conduct of the convict-husband of not informing the
family members about the death of their daughter. Though in his further
statement, the convict-husband has said that he had informed the family
members of the deceased yet the evidence of PW3 Harender Singh (uncle
of the deceased) is otherwise. In his oral evidence, he has deposed as under:
“My niece Sudha had died on 13.5.2007. Information thereof was
given to me by my brother Shivcharan over the telephone. Shivcharan
was living in Delhi. Then I told Shivcharan to inquire into the matter.
Shivcharan went to the house of Balvir but he was not there. Then I
gave this information in the Police Station, Kotdwar at 2 o’clock in
the night over the telephone and also informed my brother Virendra.
Thereafter, my brother came to the Police Station, Kotdwar in the
morning. I also went to the police station. Then I had gone to the
village of Balvir. There I saw the dead body of Sudha. I do not know
as to whether Sudha died in Delhi or in the village.”
30. In the aforesaid context, the oral evidence of the PW1 Virendra
Singh (father of the deceased) is also relevant. In his oral evidence, PW1
has stated as under:
“Balvir Singh took my daughter to Delhi in the year 2007 and left his
son here in the village itself. At the time of going, she telephoned my
brother Harender, who lives in Jhandi Chaur, and had told him that
she does not want to go to Delhi. She unwillingly went, but I cannot
tell how she had gone.
Two days after going to Delhi, my brother received information that
Sudha had died. My brother Shivcharan informed about it. Balvir
was living in Mangolpuri in Delhi. The neighbours told Shivcharan
that Sudha had died. Then, Balvir came to Ratanpur with the dead
body of Sudha. Then, I came to Kotdwar the next day and gave this
information in the police station. Then the police came with me to
BALVIR SINGH v. STATE OF UTTARAKHAND 835
[J. B. PARDIWALA, J.]
Ratanpur. There the police prepared the inquest report and I was the
panch in the inquest proceedings.
There was a mark of injury on the neck of my daughter. I was suspicious
of her death and so, I asked for a post-mortem. The witness was shown
the inquest report Paper No. 9Ka, upon which he admitted his signature
at the opinion of the Panches. Thereafter the dead body was sent for
the post-mortem.”
31. We shall now look into the two letters addressed by the deceased
to her father (PW1). Both these letters have been proved through the oral
evidence of the PW1 and have been exhibited. The letter dated 20.05.2004,
Exh. Ka-1 reads thus:
“Dated : 20.05.04
Respected mother and father, please accept my pranam with folded
hands. At the moment I am alive and pray before the Almighty for
wellbeing of your whole family. Father Saheb, the reason behind
writing this letter is that I am feeling quite harassed here. There is no
faith of life as to when it may come to an end, any untoward incident
may happen with me at any time. Father Saheb, since the time my
marriage was solemnized, I have been feeling extremely harassed
from the acts of my mother-in-law and husband but I have not told you
about this till date thinking that good sense will prevail with passage
of time but, both of these intend to eliminate me. They say that your
father has not given anything in dowry. They told me that if you bring
Rs.1 lakh cash from your father then only you can stay here, otherwise
you go to your parents’ home, or else we will eliminate you. I told them
that my father is a labourer, and he cannot arrange Rs. 1 lakh. On
account of this, my mother-in-law and husband have been beating me.
They did not provide me food for several weeks. I remained hungry
& thirsty and the women of village somehow provided me food by
hiding themselves from these people. My mother-in-law even forbade
me from giving milk to my 9-month-old son and forced me to bring
firewood from jungle. Even after that, food was not provided to me.
I have been staying at my matrimonial home throughout. You invited
us several times for various functions and ceremonies but they neither
allowed me to go nor they went themselves. They say that if you wish
836 SUPREME COURT REPORTS [2023] 12 S.C.R.
to go then bring Rs. One lakh otherwise you will not be allowed to
return here. They say that your parents and family members should
not come here, if they do then it would not be good for me. My father,
I do not have any support, I am surviving here at mercy of God. I have
been staying here hungry & thirsty. On account of the beatings being
given by them, I have not been keeping good health. Till date I have
concealed all these facts. My father if you can arrange Rs. One lakh
then my life can be saved, otherwise I do not know as to what will
happen with me, any untoward incident may happen with me. Please
do not tell anyone about this letter otherwise they will eliminate me.
Yours daughter
Village Mangolpuri”
32. The second letter, Exh. Ka-2 reads thus:
“Respected mother and father, accept Pranam from your daughter
Sudha with folded hands. Love to Krishna, Manoj, Mukesh from their
sister. I am well here and pray before Almighty for your well-being.
I need my previous letter which I had written to you. I am not asking
for the letter under pressure from anyone. I am happy at my home. I
heard that uncle Anil is coming here and so I request you to send that
letter through him. My father, if you wish to see me happy then please
send the letter through Anil uncle. I have to stay here only. I am not
asking for it under pressure from anyone, I want that letter. If you do
not send that letter through Anil uncle then treat that your daughter is
no more. I am very well here. Don’t think more, just send the letter only,
I will wait for the same. Your son-in-law has been behaving properly
with me. If he behaves with me properly, then everything is alright and
you should not be concerned. You just send the letter through uncle,
as I need that letter and there is no benefit in keeping that letter with
you. I am alright here; you should feel happy about it. Sonu is fine.
Your daughter Sudha.”
PRINCIPLES OF LAW GOVERNING THE APPLICABILITY
OF SECTION 106 OF THE EVIDENCE ACT
33. Section 106 of the Evidence Act, states as under:
BALVIR SINGH v. STATE OF UTTARAKHAND 837
[J. B. PARDIWALA, J.]
“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.
Illustration
(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.”
34. Section 106 of the Evidence Act referred to above provides that
when any fact is especially within the knowledge of any person, the burden
of proving that fact is upon him. The word “especially” means facts that
are pre-eminently or exceptionally within the knowledge of the accused.
The ordinary rule that applies to the criminal trials that the onus lies on the
prosecution to prove the guilt of the accused is not in any way modified
by the rule of facts embodied in Section 106 of the Evidence Act. Section
106 of the Evidence Act is an exception to Section 101 of the Evidence
Act. Section 101 with its illustration (a) 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 the facts
which are, “especially within the knowledge of the accused and which, he
can prove without difficulty or inconvenience”.
35. In Shambhu Nath Mehra v. The State of Ajmer reported in AIR
1956 SC 404, this Court while considering the word “especially” employed
in Section 106 of the Evidence Act speaking through Vivian Bose, J.,
observed as under:
“11. … 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.
838 SUPREME COURT REPORTS [2023] 12 S.C.R.
It is evident that that cannot be the intention & 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. The King, 1936 PC 169 (AIR V 23) (A)
and Seneviratne v. R, 1936-3 All ER 36 at p. 49 (B).”
36. The aforesaid decision of Shambhu Nath (supra) has been referred
to and relied upon in Nagendra Sah v. State of Bihar reported in (2021) 10
SCC 725, wherein this Court observed as under:
“22. Thus, Section 106 of the Evidence Act will apply to those cases
where the prosecution has succeeded in establishing the facts from
which a reasonable inference can be drawn regarding the existence
of certain other facts which are within the special knowledge of the
accused. When the accused fails to offer proper explanation about the
existence of said other facts, the court can always draw an appropriate
inference.
23. When a case is resting on circumstantial evidence, if the accused
fails to offer a reasonable explanation in discharge of burden placed
on him by virtue of Section 106 of the Evidence Act, such a failure
may provide an additional link to the chain of circumstances. In a case
governed by circumstantial evidence, if the chain of circumstances
which is required to be established by the prosecution is not established,
the failure of the accused to discharge the burden under Section 106 of
the Evidence Act is not relevant at all. When the chain is not complete,
falsity of the defence is no ground to convict the accused.”
(Emphasis supplied)
37. In Tulshiram Sahadu Suryawanshi and Another v. State of
Maharashtra reported in (2012) 10 SCC 373, this Court observed as under:
“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,
BALVIR SINGH v. STATE OF UTTARAKHAND 839
[J. B. PARDIWALA, J.]
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 [(2000) 8 SCC 382 : 2000 SCC
(Cri) 1516]: (SCC p. 393, para 38)
“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 Shambu Nath Mehra v. State of Ajmer [AIR 1956 SC
404 : 1956 Cri LJ 794] the learned Judge has stated the legal
principle thus: (AIR p. 406, para 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
pre-eminently or exceptionally within his knowledge.’””
(Emphasis supplied)
840 SUPREME COURT REPORTS [2023] 12 S.C.R.
38. In Trimukh Maroti Kirkan v. State of Maharashtra reported in
(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 also presides to see that a guilty man does
not escape. Both are public duties. (See Stirland v. Director of Public
Prosecutions [1944 AC 315 : (1944) 2 All ER 13 (HL)] — quoted
with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh
[(2003) 11 SCC 271 : 2004 SCC (Cri) 135].) 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
BALVIR SINGH v. STATE OF UTTARAKHAND 841
[J. B. PARDIWALA, J.]
inmates of the house cannot get away by simply keeping quiet and
offering no explanation on the supposed premise that the burden to
establish its case lies entirely upon the prosecution and there is no
duty at all on an accused to offer any explanation.
xxx xxx xxx
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. …”
(Emphasis supplied)
39. The question of burden of proof, where some facts are within the
personal knowledge of the accused, was examined by this Court in the case
of State of W.B. v. Mir Mohammad Omar and Others reported in (2000) 8
SCC 382. In this case, the assailants forcibly dragged the deceased from the
house where he was taking shelter on account of the fear of the accused, and
took him away at about 2:30 in the night. The next day in the morning, his
mangled body was found lying in the hospital. The trial court convicted the
accused under Section 364, read with Section 34 of the IPC, and sentenced
them to ten years rigorous imprisonment. The accused preferred an appeal
against their conviction before the High Court and the State also filed an
appeal challenging the acquittal of the accused for the charge of murder. The
accused had not given any explanation as to what happened to the deceased
after he was abducted by them. The Sessions Judge, after referring to the
law on circumstantial evidence, had observed that there was a missing link
in the chain of evidence after the deceased was last seen together with the
accused persons, and the discovery of the dead body in the hospital, and
concluded that the prosecution had failed to establish the charge of murder
against the accused persons beyond any reasonable doubt. This Court took
note of the provisions of Section 106 of the Evidence Act, and laid down
the following principles in paras 31 to 34 of the report:
842 SUPREME COURT REPORTS [2023] 12 S.C.R.
“31. The pristine rule that the burden of proof is on the prosecution
to prove the guilt of the accused should not be taken as a fossilised
doctrine as though it admits no process of intelligent reasoning. The
doctrine of presumption is not alien to the above rule, nor would it
impair the temper of the rule. On the other hand, if the traditional
rule relating to burden of proof of the prosecution is allowed to be
wrapped in pedantic coverage, the offenders in serious offences
would be the major benefi ciaries and the society would be the
casualty.
32. In this case, when the prosecution succeeded in establishing the
afore-narrated circumstances, the court has to presume the existence
of certain facts. Presumption is a course recognised by the law for
the court to rely on in conditions such as this.
33. Presumption of fact is an inference as to the existence of one
fact from the existence of some other facts, unless the truth of
such inference is disproved. 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 principle has gained legislative recognition in India when
Section 114 is incorporated in the Evidence Act. It empowers the
court to presume the existence of any fact which it thinks likely to
have happened. In that process the court shall have regard to the
common course of natural events, human conduct etc. in relation to
the facts of the case.
34. When it is proved to the satisfaction of the Court that Mahesh
was abducted by the accused and they took him out of that area, the
accused alone knew what happened to him until he was with them.
If he was found murdered within a short time after the abduction
the permitted reasoning process would enable the Court to draw the
presumption that the accused have murdered him. Such inference can
be disrupted if the accused would tell the Court what else happened
to Mahesh at least until he was in their custody.”
(Emphasis supplied)
BALVIR SINGH v. STATE OF UTTARAKHAND 843
[J. B. PARDIWALA, J.]
40. Applying the aforesaid principles, this Court while maintaining
the conviction under Section 364 read with Section 34 of the IPC,
reversed the order of acquittal under Section 302 read with Section
34 of the IPC, and convicted the accused under the said provision and
sentenced them to imprisonment for life.
41. Thus, from the aforesaid decisions of this Court, it is evident
that the court should apply Section 106 of the Evidence Act in criminal
cases with care and caution. It cannot be said that it has no application
to criminal cases. The ordinary rule which applies to criminal trials in
this country that the onus lies on the prosecution to prove the guilt of
the accused is not in any way modified by the provisions contained in
Section 106 of the Evidence Act.
42. Section 106 cannot be invoked to make up the inability of the
prosecution to produce evidence of circumstances pointing to the guilt
of the accused. This section cannot be used to support a conviction
unless the prosecution has discharged the onus by proving all the
elements necessary to establish the offence. It does not absolve the
prosecution from the duty of proving that a crime was committed even
though it is a matter specifically within the knowledge of the accused
and it does not throw the burden of the accused to show that no crime
was committed. To infer the guilt of the accused from absence of
reasonable explanation in a case where the other circumstances are
not by themselves enough to call for his explanation is to relieve the
prosecution of its legitimate burden. So, until a prima facie case is
established by such evidence, the onus does not shift to the accused.
43. Section 106 obviously refers to cases where the guilt of the
accused is established on the evidence produced by the prosecution
unless the accused is able to prove some other facts especially within
his knowledge which would render the evidence of the prosecution
nugatory. If in such a situation, the accused gives an explanation which
may be reasonably true in the proved circumstances, the accused gets
the benefit of reasonable doubt though he may not be able to prove
beyond reasonable doubt the truth of the explanation. But if the accused
in such a case does not give any explanation at all or gives a false or
unacceptable explanation, this by itself is a circumstance which may
844 SUPREME COURT REPORTS [2023] 12 S.C.R.
well turn the scale against him. In the language of Prof. Glanville
Williams:
“All that the shifting of the evidential burden does at the final stage
of the case is to allow the jury (Court) to take into account the silence
of the accused or the absence of satisfactory explanation appearing
from his evidence.”
44. To recapitulate the foregoing : What lies at the bottom of the various
rules shifting the evidential burden or burden of introducing evidence in
proof of one’s case as opposed to the persuasive burden or burden of proof,
i.e., of proving all the issues remaining with the prosecution and which
never shift is the idea that it is impossible for the prosecution to give wholly
convincing evidence on certain issues from its own hand and it is therefore
for the accused to give evidence on them if he wishes to escape. Positive
facts must always be proved by the prosecution. But the same rule cannot
always apply to negative facts. It is not for the prosecution to anticipate and
eliminate all possible defences or circumstances which may exonerate an
accused. Again, when a person does not act with some intention other than
that which the character and circumstances of the act suggest, it is not for
the prosecution to eliminate all the other possible intentions. If the accused
had a different intention that is a fact especially within his knowledge and
which he must prove (see Professor Glanville Williams—Proof of Guilt,
Ch. 7, page 127 and following) and the interesting discussion—para 527
negative averments and para 528—“require affirmative counter-evidence”
at page 438 and foil, of Kenny’s outlines of Criminal Law, 17th Edn. 1958.
45. But Section 106 has no application to cases where the fact in
question having regard to its nature is such as to be capable of being known
not only by the accused but also by others if they happened to be present
when it took place. From the illustrations appended to the section, it is
clear that an intention not apparent from the character and circumstances
of the act must be established as especially within the knowledge of the
person whose act is in question and the fact that a person found travelling
without a ticket was possessed of a ticket at a stage prior in point of time
to his being found without one, must be especially within the knowledge
of the traveller himself : see Section 106 of the Indian Evidence Act,
illustrations (a) and (b).
BALVIR SINGH v. STATE OF UTTARAKHAND 845
[J. B. PARDIWALA, J.]
46. A manifest distinction exists between the burden of proof and
the burden of going forward with the evidence. Generally, the burden of
proof upon any affirmative proposition necessary to be established as the
foundation of an issue does not shift, but the burden of evidence or the
burden of explanation may shift from one side to the other according to the
testimony. Thus, if the prosecution has offered evidence which if believed
by the court would convince them of the accused’s guilt beyond a reasonable
doubt, the accused is in a position where he should go forward with counter-
vailing evidence if he has such evidence. When facts are peculiarly within
the knowledge of the accused, the burden is on him to present evidence of
such facts, whether the proposition is an affirmative or negative one. He is
not required to do so even though a prima facie case has been established,
for the court must still find that he is guilty beyond a reasonable doubt before
it can convict. However, the accused’s failure to present evidence on his
behalf may be regarded by the court as confirming the conclusion indicated
by the evidence presented by the prosecution or as confirming presumptions
which might have been rebutted. Although not legally required to produce
evidence on his own behalf, the accused may therefore as a practical matter
find it essential to go forward with proof. This does not alter the burden
of proof resting upon the prosecution (Wharton’s Criminal Evidence, 12th
Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Leland v. State reported in 343 U.S.
790=96 L.Ed. 1302, Raffel v. U.S. reported in 271 U.S. 294=70 L.Ed. 1054.
WHAT IS “PRIMA FACIE CASE” IN THE CONTEXT OF
SECTION 106 OF THE EVIDENCE ACT?
47. The Latin expression prima facie means “at first sight”, “at first
view”, or “based on first impression”. According, to Webster’s Third
International Dictionary (1961 Edn.), “prima facie case” means a case
established by “prima facie evidence” which in turn means “evi-Ideuce
sufficient in law to raise a presumption of fact or establish the fact in question
unless rebutted”. In both civil and criminal law, the term is used to denote
that, upon initial examination, a legal claim has sufficient evidence to
proceed to trial or judgment. In most legal proceedings, one party (typically,
the plaintiff or the prosecutor) has a burden of proof, which requires them
to present prima facie evidence for each element of the charges against the
defendant. If they cannot present prima facie evidence, or if an opposing
846 SUPREME COURT REPORTS [2023] 12 S.C.R.
party introduces contradictory evidence, the initial claim may be dismissed
without any need for a response by other parties.
48. Section 106 of the Evidence Act would apply to cases where the
prosecution could be said to have succeeded in proving facts from which a
reasonable inference can be drawn regarding death.
49. The presumption of fact is an inference as to the existence of one
fact from the existence of some other facts, unless the truth of such inference
is disproved.
50. To explain what constitutes a prima facie case to make Section
106 of the Evidence Act applicable, we should refer to the decision of this
Court in Mir Mohammad (supra), wherein this Court has observed in paras
36 and 37 respectively as under:
“36. In this context we may profitably utilise the legal principle
embodied in Section 106 of the Evidence Act which reads as follows:
“When any fact is especially within the knowledge of any person, the
burden of proving that fact is upon him.”
37. The section is not intended to relieve the prosecution of its burden to
prove the guilt of the accused beyond reasonable doubt. But the section
would apply to cases where the prosecution has succeeded in proving
facts from which a reasonable inference can be drawn regarding the
existence of certain other facts, unless the accused by virtue of his
special knowledge regarding such facts, failed to offer any explanation
which might drive the court to draw a different inference.”
(Emphasis supplied)
51. We should also look into the decision of this Court in the case of
Ram Gulam Chaudhary and Others v. State of Bihar reported in (2001)
8 SCC 311, wherein this Court made the following observations in para 24
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
BALVIR SINGH v. STATE OF UTTARAKHAND 847
[J. B. PARDIWALA, J.]
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.”
(Emphasis supplied)
52. In the case on hand it has been established or rather proved to the
satisfaction of the court that the deceased was in company of her husband
i.e., the appellant-convict at a point of time when something went wrong
with her health and therefore, in such circumstances the appellant-convict
alone knew what happened to her until she was with him.
FAILURE ON THE PART OF THE APPELLANT-CONVICT
IN OFFERING ANY PLAUSIBLE EXPLANATION IN HIS
FURTHER STATEMENT RECORDED UNDER SECTION 313
OF THE CRPC
53. We take notice of the fact that the appellant-convict (husband) has
not explained in any manner as to what had actually happened to his wife
more particularly when it is not in dispute that the appellant-convict was in
company of his wife i.e., deceased. It is important to bear in mind that the
deceased died on account of poisoning. The poison which was detected in
the viscera was found to be “aluminium phosphide”. Although, the appellant-
convict tried to project a picture that no sooner the deceased fell sick than
848 SUPREME COURT REPORTS [2023] 12 S.C.R.
he immediately took her to the Sanjay Gandhi Hospital at Delhi, yet, there
is no evidence worth the name in this regard. The appellant-convict was
expected to lead some evidence as to what had transpired at the Sanjay
Gandhi Hospital. He has maintained a complete silence. It is only the
appellant-convict who could have explained in what circumstances and in
what manner he had taken his wife to the Sanjay Gandhi Hospital and who
attended his wife at the hospital. If it is his case, that his wife was declared
dead on being brought at the hospital then it is difficult to believe that the
hospital authorities allowed the appellant to carry the dead body back home
without completing the legal formalities.
54. In the aforesaid context, we must look into the decision of this
Court in the case of Deonandan Mishra v. The State of Bihar reported in
AIR 1955 SC 801. In the said decision, there is a very important passage
in which, the learned Judges deal with the effect of failure of the accused
to offer any explanation for circumstances appearing in evidence against
him in a prosecution based upon circumstantial evidence. At the cost of
repetition, the law is very clear that the accused is not bound to offer any
explanation, that there is no burden cast upon him to do so and that the onus
of proof does not shift in respect of the vital matter of guilt at any stage of
a criminal trial. But as stated by this Court:
“It is true that in a case of circumstantial evidence not only should the
various links in the chain of evidence be clearly established, but the
completed chain must be such as to rule out a reasonable likelihood
of the innocence of the accused. But in a case where the various links
have been satisfactorily made out and the circumstances point to the
accused as the probable assailant, with reasonable definiteness and in
proximity to the deceased as regards time and situation, and he offers
no explanation, which, if accepted, though not proved, would afford
a reasonable basis for a conclusion on the entire case consistent with
his innocence, such absence of explanation or false explanation would
itself be an additional link which completes the chain.”
(Emphasis supplied)
55. In our view, the aforesaid passage applies with great force to the
facts and circumstances of the present case.
BALVIR SINGH v. STATE OF UTTARAKHAND 849
[J. B. PARDIWALA, J.]
56. Even where there are facts especially within the knowledge of the
accused, which could throw a light upon his guilt or innocence, as the case
may be, the accused is not bound to allege them or to prove them. But it is
not as if the section is automatically inapplicable to the criminal trials, for, if
that had been the case, the Legislature would certainly have so enacted. We
consider the true rule to be that Section 106 does not cast any burden upon an
accused in a criminal trial, but that, where the accused throws no light at all
upon the facts which ought to be especially within his knowledge, and which
could support any theory of hypothesis compatible with his innocence, the
Court can also consider his failure to adduce any explanation, in consonance
with the principle of the passage in Deonandan Mishra (supra), which we
have already set forth. The matter has been put in this form, with reference
to Section 106 of the Evidence Act, in Smith v. R. reported in 1918 A.I.R.
Mad. 111, namely, that if the accused is in a position to explain the only
alternative theory to his guilt, the absence of explanation could be taken
into account. In the present case, taking the proved facts together, we are
unable even to speculate about any alternative theory which is compatible
with the innocence of the accused.
57. In the aforesaid context, we may also refer to and rely on a decision
of this Court in Kalu alias Laxminarayan v. State of Madhya Pradesh
reported in (2019) 10 SCC 211, wherein this Court after referring to its
various other decisions on the applicability of Section 106 of the Evidence
Act observed as under:
“16. 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 CrPC
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.”
(Emphasis supplied)
58. We should also look into the decision of this Court in the case
of Sawal Das v. State of Bihar reported in (1974) 4 SCC 193. In the said
850 SUPREME COURT REPORTS [2023] 12 S.C.R.
case the trial court had come to the conclusion that, upon the established
circumstances listed above, no other inference was left open to the Court
except that the appellant and his father and stepmother had conjointly
committed the murder of the deceased Smt. Chanda Devi on the morning
of 28.05.1965 and that the appellant and his father had then hastily and
stealthily disposed off the body in order to conceal the commission of the
offence. It had also taken into account, in coming to this conclusion, the fact
that the appellant had unsuccessfully set up a plea, in his written statement,
that, Smt. Chanda Devi, who was alleged by him to be wearing a nylon
Saree said to have caught fire accidentally while she was using a kerosene
stove in her room, died of extensive burns on her body and collapsed. The
appellant had alleged that Smt. Chanda Devi was debilitated and kept bad
health due to frequent pregnancies and was also suffering from asthma, a
weak heart, and abdominal complaints. She had given birth to six children.
59. In view of the aforesaid facts, this Court held as under:
“8. We think that the burden of proving the plea that Smt. Chanda Devi
died in the manner alleged by the appellant lay upon the appellant.
This is clear from the provisions of Sections 103 and 106 of the Indian
Evidence Act. Both the trial Court and the High Court had rightly
pointed out that the appellant had miserably failed to give credible
or substantial evidence of any facts or circumstances which could
support the pleas that Smt. Chanda Devi met her death because her
Nylon Saree had accidentally caught fire from a kerosene stove. The
trial Court had rightly observed that the mere fact that some witnesses
had seen some smoke emerging from the room, with a kitchen nearby
at a time when food was likely to be cooked, could not indicate that
Smt. Chanda Devi’s saree had caught fire. Neither the murdered woman
nor the appellant nor any member of his family was shown to have
run about or called for help against a fire.
9. Learned Counsel for the appellant contended that Section 106 of the
Evidence Act could not be called in aid by the prosecution because that
section applies only where a fact relating to the actual commission of
the offence is within the special knowledge of the accused, such as the
circumstances in which or the intention with which an accused did a
particular act alleged to constitute an offence. The language of Section
BALVIR SINGH v. STATE OF UTTARAKHAND 851
[J. B. PARDIWALA, J.]
106 of the Evidence Act does not, in our opinion, warrant putting
such a narrow construction upon it. This Court held in Gurcharan
Singh v. State of Punjab [AIR 1956 SC 460 : (1956) Cri LJ 827] that
the burden of proving a plea specifically set up by an accused, which
may absolve him from criminal liability, certainly lies upon him. It
is a different matter that the quantum of evidence by which he may
succeed in discharging his burden of creating a reasonable belief, that
circumstance, absolving him from criminal liability may have existed,
is lower than the burden resting upon the prosecution to establish the
guilt of an accused beyond reasonable doubt.
10. Neither an application of Section 103 nor of 106 of the Evidence Act
could, however, absolve the prosecution from the duty of discharging
its general or primary burden of proving the prosecution case beyond
reasonable doubt. It is only when the prosecution has led evidence
which, if believed, will sustain a conviction, or, which makes out a
prima facie case, that the question arises of considering facts of which
the burden of proof may lie upon the accused. The crucial question
in the case before us is : Has the prosecution discharged its initial
or general and primary burden of proving the guilt of the appellant
beyond reasonable doubt?”
(Emphasis supplied)
60. We also pose the very same question like the one posed in Sawal
Das (supra) referred to above, “has the prosecution discharged its initial or
general and primary burden of proving the guilt of the appellants beyond
reasonable doubt?”
61. We are of the view that the circumstances narrated by us in para
28 of this judgment constitute more than a prima facie case to enable the
prosecution to invoke Section 106 of the Evidence Act and shift the burden
on the accused husband to explain what had actually happened on the date
his wife died.
62. These appeals remind us of what this Court observed in the case
of Dharam Das Wadhwani v. State of Uttar Pradesh: “The rule of benefit
of reasonable doubt does not imply a frail willow bending to every whiff of
hesitancy. Judges are made of sterner stuff and must take a practical view
852 SUPREME COURT REPORTS [2023] 12 S.C.R.
of legitimate inferences flowing from evidence, circumstantial or direct.”
The role of courts in such circumstances assumes greater importance and
it is expected that the courts would deal with such cases in a more realistic
manner and not allow the criminals to escape on account of procedural
technicalities, perfunctory investigation or insignificant lacunas in the
evidence as otherwise the criminals would receive encouragement and
the victims of crime would be totally discouraged by the crime going
unpunished. The courts are expected to be sensitive in cases involving
crime against women.
63. In the result, both the appeals fail and are hereby dismissed.
64. However, as Maheshwari Devi (mother-in-law) appellant of
Criminal Appeal No. 2430 of 2014 has been convicted only for the offence
punishable under Section 498A of the IPC, we reduce her sentence to the
period already undergone. Even otherwise, she is on bail. Maheshwari Devi
need not now surrender. Her bail bonds stand discharged.
65. Pending applications if any shall stand disposed of.
Headnotes prepared by: Appeals dismissed.
Ankit Gyan
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