G H RANJIT KUMAR HALDARversusSTATE OF SIKKIM

754                       [2019]
               SUPREME COURT     9 S.C.R. 754
                              REPORTS                      [2019] 9 S.C.R.


A                        RANJIT KUMAR HALDAR
                                       v.
                              STATE OF SIKKIM
                       (Criminal Appeal No. 427 of 2014)
B                                JULY 25, 2019
           [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
             Penal Code, 1860: s.302 – Murder – Prosecution case was
      that the victim-deceased had gone with his family for work with the
      accused – Accused along with his nephew and wife of the deceased
C
      murdered the victim and buried his body in the house where they
      used to stay – Body of deceased was concealed underneath the
      wooden flooring at their place of residence and was recovered on
      the disclosure statement made by the wife of the deceased after
      removing the flooring – Conviction of appellants by courts below –
D     On appeal, held: There is no dispute that the lock of the house was
      opened by the Police for the first time after appellant locked the
      house and went to his native village – The house was in his
      possession and no one had access to that house and, therefore, the
      burden of proving the fact that somebody had access to the house
      during his absence was on him in terms of s.106 of the Evidence
E
      Act – Appellant did not even suggest to the prosecution witnesses of
      possibility of access to the house rented by him – The testimony of
      PW-5 that the house was taken on rent by the appellant was proved
      – Appellant miserably failed to disprove the presumption under s.106
      of the Evidence Act – In respect of the lady accused, recovery of
F     dead body concealed under the wooden planks covered by mud
      and stones on her disclosure statement was very strong incriminating
      circumstance against her to maintain her conviction – Apart from
      that, there was a statement of PW-2 before whom she had confessed
      – PW-4, husband of PW-2 supported this testimony – Also the dead
      body was identified by PW-3 from the wearing apparels of the
G
      deceased such as sweater and a mala – None of the witnesses were
      cross-examined to the effect that dead body was not of the deceased
      – Both the courts below rightly recorded conviction of the appellants
      as the persons responsible for causing death of the deceased –
      Evidence Act, 1872 – s.106.
H
                                      754
       RANJIT KUMAR HALDAR v. STATE OF SIKKIM                           755


      Evidence Act, 1872: s.106 – Burden of proof – s.106 lays          A
down general rule about the burden of proof – This section was
introduced not to relieve the prosecution of their duty but was
designed to meet the situation in which it is impossible or difficult
for the prosecution to establish facts which were especially within
the knowledge of the accused – Penal Code, 1860 – s.302.
                                                                        B
       First Information Report: Murder case – FIR was lodged
originally in Bengali language which was later translated in Nepali
language – Non-examination of translator – Effect on prosecution
case – Held: First Information Report was only in respect of
information of death – The Investigating Officer carried out
investigation de-hors the version given by the informant in the First   C
Information Report – Therefore, non-examination of translator
would not create any doubt on the prosecution case – Penal Code,
1860 – s.302.
      Dismissing the appeals, the Court
                                                                        D
      HELD : 1.1 Burden of proof. Section 106 of the Evidence
Act was introduced not to relieve the prosecution of their duty
but it is designed to meet the situation in which it would be
impossible or difficult for the prosecution to establish facts which
are especially within the knowledge of the accused. [Para 14]
[761-B-C]                                                               E

      1.2 The dead body was recovered in a gunny bag concealed
under the wooden planks covered by mud and stones. The lock
of the house was opened by the Police for the first time after
appellant locked the house and went to his native village.
Therefore, in the absence of any question on these aspects that         F
the house was in his possession and no one had access to that
house, the burden of proving the fact that somebody had access
to the house during his absence was on him in terms of Section
106 of the Act. The testimony of PW-5 that the house was taken
on rent by the appellant was proved and on the basis of statement       G
of PW-3, who is a Carpenter and was residing in the same area,
the appellant miserably failed to disprove the presumption under
Section 106 of the Act. [Para 21] [767-B-E]
     2. In respect of the lady accused, there is evidence of
recovery of dead body concealed in a house on the basis of her
                                                                        H
756           SUPREME COURT REPORTS                     [2019] 9 S.C.R.


A     disclosure statement, where she was allegedly living with the
      other appellant along with the deceased and her two children.
      The recovery of dead body concealed under the wooden planks
      covered by mud and stones is very strong incriminating
      circumstance against her to maintain her conviction. Apart from
      such incriminating circumstance, there is a statement of PW-2
B
      before whom she has confessed. [Para 22] [767-E-G]
            3. The argument that the person who translated the Bengali
      version into Nepali was not examined when the First Information
      Report was lodged is wholly inconsequential. Such First
      Information Report was only in respect of information of death.
C     The Investigating Officer carried out investigation de-hors the
      version given by the informant in the First Information Report.
      Therefore, non-examination of translator would not create any
      doubt on the prosecution case. [Para 23] [767-G-H; 768-A]
            4. Argument that no DNA Test was conducted to identify
D     the dead body, is not tenable. The dead body was recovered on
      the statement of wife of the deceased who stated in the disclosure
      statement that dead body of her husband is concealed under the
      wooden planks in a room which was in her possession. Apart
      from the said statement, PW-3 identified the dead body from the
E     wearing apparels of the deceased such as sweater and a
      mala. Therefore, the argument raised is not tenable. [Para 24]
      [768-B-C]
           Shambu Nath Mehra v. State of Ajmer AIR 1956 SC
           404 : [1956] SCR 199 ; Trimukh Maroti Kirkan v. State
F          of Maharashtra (2006) 10 SCC 681 : [ 2006] 7 Suppl.
            SCR 156 ; Nika Ram v. State of Himachal Pradesh
           (1972) 2 SCC 80 : [1973] 1 SCR 428 ; State of
           Rajasthan v. Thakur Singh (2014) 12 SCC 211 : [2014]
           8 SCR 18 ; Dnyaneshwar v. State of Maharashtra
           (2007) 10 SCC 445 : [2007] 4 SCR 248 ; Ram Gulab
G          Chaudhary & Ors. v. State of Bihar (2001) 8 SCC
           311 : [2001] 3 Suppl. SCR 279 – relied on.
           Sudam Charan Dash v. State of Orissa & Anr. (2014) 2
           SCC 141 : [2013] 10 SCR 284 – referred to.

H
        RANJIT KUMAR HALDAR v. STATE OF SIKKIM                             757


                        Case Law Reference                                 A
[2013] 10 SCR 284                referred to              Para 5
[1956] SCR 199                   relied on                Para 15
[2006] 7 Suppl. SCR 156          relied on                Para 16
[1973] 1 SCR 428                 relied on                Para 17          B
[2014] 8 SCR 18                  relied on                Para 18
[2007] 4 SCR 248                 relied on                Para 19
[2001] 3 Suppl. SCR 279          relied on                Para 20
                                                                           C
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 427 of 2014.
      From the Judgment and Order dated 25.11.2011 of the High Court
of Sikkim at Gangtok in Crl. A. No. 8 of 2010.
      With                                                                 D
      Crl. A. No. 458 of 2015.
     Ms. Aparna Jha, Ms. Kriti Sondhi, Arvind Sharma, F. I. Choudhury
and Rameshwar Prasad Goyal, Advs. for the Appellant.
       Raghvendra Kumar and M/s. Arputham Aruna and Co., Advs.
                                                                           E
for the Respondent.
      The Judgment of the Court was delivered by
      HEMANT GUPTA, J.
      1. The present appeals arise out of common judgment dated
November 25, 2011, maintaining conviction and sentence on the appellants   F
for causing death of Netai Mohanta.
      2. An FIR was lodged by Bhola Mohanta (PW-1), brother of the
deceased, on December 28, 2004. The original FIR was lodged in Bengali
language (Exh. 1), which was later translated in Nepali language. Bhola
Mohanta (PW-1) in his statement has stated that his brother had gone to    G
Rabom Power House at Lachung along with his family with the accused
Ranjit Haldar to work as Carpenter. He further stated that his deceased
brother, Netai Mohanta, was murdered by accused Ranjit Haldar along
with his nephew Puran Bandhu Mondal and Mamta Mohanta, wife of
                                                                           H
758               SUPREME COURT REPORTS                       [2019] 9 S.C.R.


A     the deceased. He also stated that the body of his deceased brother was
      buried inside the house at Rabom where they used to stay.
            3. On the basis of his statement, the investigations were undertaken
      by Rinzing Palzor Bhutia (PW-15). He deposed that he availed the
      services of one Krishna Kanta Burman for translating the contents of
B     FIR, lodged by Bhola Mohanta, from Bengali language to Nepali
      language. He visited the place of occurrence at the house belonging to
      one Jamyang Bhutia (PW-5) and prepared rough sketch map and also
      arranged to take photographs of the place of occurrence. Accused
      Mamta Mohanta was present at the place of occurrence who was brought
      by Bhola Mohanta (PW-1). The statement (Exh. 4) of accused Mamta
C     Mohanta was recorded under Section 27 of the Indian Evidence Act,
      18721. On the basis of statement, the dead body of deceased Netai
      Mohanta concealed underneath the wooden flooring at the place of
      residence was recovered after the flooring was removed. Dr. S.D.
      Sharma (PW-12), a medical consultant of STNM Hospital, was also
D     present at the time of recovery of dead body. The dead body was found
      packed in a gunny bag with its opening tied by a rope. The body has not
      decomposed but dried to certain extent as the weather condition at Rabom
      being cold. The dead body was identified by Ravi Deb (PW-3). The
      postmortem report is Exh. 27. The investigating officer took into
      possession one plane (randa), one local made ‘angethi’, one ‘batali’
E     (carpenter tool) and a lock. He also took into possession two gunny
      bags smeared with mud, two pieces of rope of different sizes from the
      place of occurrence.
              4. Learned counsel for the appellants have vehemently argued
      that the original FIR was recorded in Bengali which was translated in
F     Nepali but prosecution has not examined Krishna Kanta Burman who
      facilitated translation of the FIR from Bengali to Nepali. The prosecution
      has examined Kumar Tamang (PW-14) who has written the First
      Information Report as told by Krishna Kanta Burman. Still further, the
      FIR was not sent to the Magistrate, therefore, the first version in the
G     FIR is not creditworthy. Since the foundation itself is shaky, the entire
      prosecution story is doubtful.
          5. Learned counsel for the appellants relied upon the judgment in
      Sudam Charan Dash v. State of Orissa & Anr. 2 to contend that
      1
          for short, ‘Act’
      2
H         (2014) 2 SCC 141
        RANJIT KUMAR HALDAR v. STATE OF SIKKIM                               759
                  [HEMANT GUPTA, J.]

information to the Magistrate is necessary chain of events in the            A
investigation. It is also argued that there is no evidence that the dead
body recovered is that of deceased Netai Mohanta as there was no
DNA examination conducted. The statements of witnesses in respect
of identification of dead body are discrepant therefore, the prosecution
cannot be said to have completed the chain of circumstances so as to
                                                                             B
convict the appellants.
      6. It is also argued by the learned counsel for the appellants that
appellants were not residing in the house at the time of recovery of
alleged dead body, therefore, the prosecution has failed to prove that the
house continued to be in possession of the appellants at the time of
recovery of dead body.                                                       C

        7. The prosecution examined Jamyang Bhutia (PW-5) who
deposed that he has given two rooms in his house on rent to Ranjit
Haldar. He further deposed that he has engaged him in the construction
work of his another house. He deposed that one boy who was initially
residing with the accused left the place. Later, one more Carpenter          D
along with his wife and two small children started living together in the
same two rooms. After residing in his house for less than a month, they
all left the house after locking the door. He has not seen them leaving
the house. It is after one month, the Police came to find out whether
any Carpenter was residing in his house. He showed the house where           E
the Carpenter was residing. Thereafter, the Police along with the female
accused came to his house. The lady accused standing in the dock
pointed the spot below the wooden floor of the house where the dead
body of her husband was concealed. The Police removed the wooden
planks from the floor and found the dead body packed in a gunny bag.
The dead body was in a decomposed state and foul smell was coming            F
out therefrom. The dead body was examined by a Doctor present there.
The witness deposed that he does not reside in the house from where
the dead body was recovered. He lives in a separate house with his
family. The accused lived for less than a month in the said house. The
lady accused joined later. He further deposed that the door of the house     G
remained under lock and key till the arrival of the Police.
       8. Ravi Deb (PW-3) is also a Carpenter. He knew both the
accused. He was informed of the death of Nitai Mohanta and was
called by the Police. The Police in his presence broke open the lock of
the door of a portion of the house. The appellant Mamta Mohanta was          H
760            SUPREME COURT REPORTS                          [2019] 9 S.C.R.


A     asked where the dead body of her husband was. On her pointing out to
      a spot under a bed as being the place where dead body of the deceased
      was concealed, the Police with the help of persons present there removed
      wooden planks. Under the wooden planks, there were stones and mud.
      After stones and mud was removed, a dead body found concealed
      wrapped in a jute gunny bag whose opening was tied with a string. The
B
      dead body was then brought out. He identified the deceased from his
      wearing apparels particularly a sweater and one mala (tulsi) around his
      neck which he used to wear and also from the appearance of the face.
             9. Doma Lepcha (PW-2) is the Vice President of Kazor Block
      Panchayat. She deposed that one Bhola Mohanta (PW-1) has filed a
C     written report at his Gram Panchayat in respect of missing of his deceased
      brother Netai Mohanta. Appellant Mamta Mohanta was brought by
      Bhola Mohanta (PW-1). Mamta Mohanta disclosed that her husband
      has been murdered by Ranjit Haldar with ‘randa’ and the dead body has
      been concealed in the same rented house in which they were last residing
D     in North Sikkim. She also disclosed that, during the incident, her husband
      was strangulated with a rope by Ranjit Haldar and his nephew Puran
      Bandhu Mondal and she had helped them. Doma Lepcha (PW-2) is a
      witness of extra-judicial confession of Mamta Mohanta. In cross-
      examination, Doma Lepcha (PW-2) deposed that she knew the deceased
      Netai Mohanta as he was staying near her house.
E
            10. Phurba Lepcha (PW-4) is a resident of Kazor Busty, Mangan
      and a witness of the disclosure statement made by Mamta Mohanta
      which led to recovery of dead body.
             11. Dr. S.D. Sharma (PW-12) was associated at the time of
F     recovery of dead body. He deposed that the body was in the advance
      stage of putrefaction. He deposed that time since death was more than
      two weeks and the cause of death was combined effect of antemortem
      head injury produced by blunt force and antemortem strangulation by
      ligature. The Medical Legal Autopsy Report is Exh. 25. The postmortem
      was conducted at the site where the dead body was recovered.
G
             12. Bhola Mohanta (PW-1) is the brother of the deceased Netai
      Mohanta and the informant on whose information the prosecution was
      set in motion. He stated that he does not know English, Hindi or Nepali
      and only knows Bengali. He deposed that he had never met Ranjit
      Haldar earlier.
H
           RANJIT KUMAR HALDAR v. STATE OF SIKKIM                                   761
                     [HEMANT GUPTA, J.]

      13. Before we examine respective contentions of the learned                   A
counsel for the parties, it would be appropriate to extract Section 106 of
the Act, which reads as under:
         “106. Burden of proving fact especially within knowledge.
         – When any fact is especially within the knowledge of any person,
         the burden of proving that fact is upon him.”                              B
       14. The general rule is that the burden of proof is on the prosecution.
Section 106 of the Act was introduced not to relieve the prosecution of
their duty but it is designed to meet the situation in which it would be
impossible or difficult for the prosecution to establish facts which are
especially within the knowledge of the accused.                                     C
                                                              3
      15. In Shambu Nath Mehra v. State of Ajmer , the Court held
as under:
         “8. …Section 106 is an exception to Section 101. Section 101 lays
         down the general rule about the burden of proof.
                                                                                    D
            “Whoever desires any court to give judgment as to any legal
            right or liability dependent on the existence of facts which he
            asserts, must prove that those facts exist.”
         Illustration (a) says—
         “A desires a court to give judgment that B shall be punished for a         E
         crime which A says B has committed.
         A must prove that B has committed the crime.”
         9. This lays down the general rule that in a criminal case the
         burden of proof is on the prosecution and Section 106 is certainly
         not intended to relieve it of that duty. On the contrary, it is designed   F
         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         G
         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
3
    AIR 1956 SC 404                                                                 H
762                 SUPREME COURT REPORTS                          [2019] 9 S.C.R.


A              who could know better than he whether he did or did not. It is
               evident that that cannot be the intention and the Privy Council has
               twice refused to construe this section, as reproduced in certain
               other Acts outside India, to mean that the burden lies on an accused
               person to show that he did not commit the crime for which he is
               tried. These cases are Attygalle v. Emperor [AIR 1936 PC 169]
B
               and Seneviratnev. R. [(1936) 3 All ER 36, 49].
               xx                          xx                xx
               11. We recognise that an illustration does not exhaust the full
               content of the section which it illustrates but equally it can neither
C              curtail nor expand its ambit; and if knowledge of certain facts is
               as much available to the prosecution, should it choose to exercise
               due diligence, as to the accused, the facts cannot be said to be
               “especially” within the knowledge of the accused. This is a section
               which must be considered in a commonsense way; and the balance
               of convenience and the disproportion of the labour that would be
D              involved in finding out and proving certain facts balanced against
               the triviality of the issue at stake and the ease with which the
               accused could prove them, are all matters that must be taken into
               consideration. The section cannot be used to undermine the well
               established rule of law that, save in a very exceptional class of
E              case, the burden is on the prosecution and never shifts.”
             16. In another judgment reported as Trimukh Maroti Kirkan v.
      State of Maharashtra4, the Court considered a situation wherein accused
      is alleged to have committed the murder of his wife. The prosecution
      succeeded in leading evidence to show that shortly before the
F     commission of the crime, they were seen together or the offence takes
      place in the dwelling house where the appellant normally resided. The
      Court held as under:
               “22. Where an accused is alleged to have committed the murder
               of his wife and the prosecution succeeds in leading evidence to
G              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
      4
H         (2006) 10 SCC 681
 RANJIT KUMAR HALDAR v. STATE OF SIKKIM                                 763
           [HEMANT GUPTA, J.]

false, it is a strong circumstance which indicates that he is           A
responsible for commission of the crime. In Nika Ram v. State of
H.P. [(1972) 2 SCC 80 : 1972 SCC (Cri) 635 : AIR 1972 SC
2077] it was observed that the fact that the accused alone was
with his wife in the house when she was murdered there with
“khukhri” and the fact that the relations of the accused with her
                                                                        B
were strained would, in the absence of any cogent explanation by
him, point to his guilt. In Ganeshlal v. State of
Maharashtra [(1992) 3 SCC 106 : 1993 SCC (Cri) 435] the
appellant was prosecuted for the murder of his wife which took
place inside his house. It was observed that when the death had
occurred in his custody, the appellant is under an obligation to give   C
a plausible explanation for the cause of her death in his statement
under Section 313 CrPC. The mere denial of the prosecution case
coupled with absence of any explanation was held to be
inconsistent with the innocence of the accused, but consistent
with the hypothesis that the appellant is a prime accused in the
                                                                        D
commission of murder of his wife. In State of U.P. v. Dr. Ravindra
Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri) 642 : AIR
1992 SC 2045] the medical evidence disclosed that the wife died
of strangulation during late night hours or early morning and her
body was set on fire after sprinkling kerosene. The defence of
the husband was that the wife had committed suicide by burning          E
herself and that he was not at home at that time. The letters
written by the wife to her relatives showed that the husband ill-
treated her and their relations were strained and further the
evidence showed that both of them were in one room in the night.
It was held that the chain of circumstances was complete and it
                                                                        F
was the husband who committed the murder of his wife by
strangulation and accordingly this Court reversed the judgment of
the High Court acquitting the accused and convicted him under
Section 302 IPC. In State of T.N. v. Rajendran [(1999) 8 SCC
679 : 2000 SCC (Cri) 40] the wife was found dead in a hut which
had caught fire. The evidence showed that the accused and his           G
wife were seen together in the hut at about 9.00 p.m. and the
accused came out in the morning through the roof when the hut
had caught fire. His explanation was that it was a case of accidental
fire which resulted in the death of his wife and a daughter. The
medical evidence showed that the wife died due to asphyxia as a
                                                                        H
764               SUPREME COURT REPORTS                         [2019] 9 S.C.R.


A              result of strangulation and not on account of burn injuries. It was
               held that there cannot be any hesitation to come to the conclusion
               that it was the accused (husband) who was the perpetrator of the
               crime.”
            17. In another Judgment reported as Nika Ram v. State of
B     Himachal Pradesh 5, it was held that the absence of any cogent
      explanation by the accused would indicate that the accused is responsible
      for commission of the crime. The Court held as under:
               “16. It is in the evidence of Girju PW that only the accused and
               Churi deceased resided in the house of the accused. To similar
C              effect are the statements of Mani Ram (PW 8), who is the uncle
               of the accused, and Bhagat Ram school teacher (PW 16).
               According to Bhagat Ram, he saw the accused and the deceased
               together at their house on the day of occurrence. Mani Ram (PW
               8) saw the accused at his house at 3 p.m., while Poshu Ram (PW
               7) saw the accused and the deceased at their house on the evening
D              of the day of occurrence. The accused also does not deny that he
               was with the deceased at his house on the day of occurrence.
               The house of the accused, according to plan PM, consists of one
               residential room, one other small room and a verandah. The
               correctness of that plan is proved by A.R. Verma overseer (PW
E              5). The fact that the accused alone was with Churi deceased in
               the house when she was murdered there with the khokhri and the
               fact that the relations of the accused with the deceased, as would
               be shown hereafter, were strained would, in the absence of any
               cogent explanation by him, point to his guilt.”

F           18. In State of Rajasthan v. Thakur Singh6, this Court reiterated
      the principle that burden of proving guilt of the accused is on the
      prosecution but there may be certain facts pertaining to a crime that can
      be known only to the accused. The Court held as under:
               “22. The law, therefore, is quite well settled that the burden of
G              proving the guilt of an accused is on the prosecution, but there
               may be certain facts pertaining to a crime that can be known only
               to the accused, or are virtually impossible for the prosecution to
               prove. These facts need to be explained by the accused and if he

      5
          (1972) 2 SCC 80
      6
H         (2014) 12 SCC 211
           RANJIT KUMAR HALDAR v. STATE OF SIKKIM                                 765
                     [HEMANT GUPTA, J.]

         does not do so, then it is a strong circumstance pointing to his guilt   A
         based on those facts.”
      19. In Dnyaneshwar v. State of Maharashtra7, this Court held
as under:
         “10. It has not been disputed before us that the deceased was
         murdered in her matrimonial home. It is not the case of the appellant    B
         that the offence was committed by somebody else. It is also not
         his case that there was a possibility of an outsider to commit the
         said offence. One of the circumstances which is relevant is that
         when the couple was last seen in a premises to which an outsider
         may not have any access, it is for the husband to explain the            C
         ground for unnatural death of his wife. In Raj Kumar Prasad
         Tamarkar v. State of Bihar [(2007) 10 SCC 433: (2007) 3 SCC
         (Cri) 716: (2007) 1 Scale 19] this Court held: (SCC p. 440, paras
         22-23)
            “22. The conspectus of the events which had been noticed by           D
            the learned Sessions Judge as also by the High Court
            categorically goes to show that at the time when the occurrence
            took place, the deceased and the respondent only were in the
            bedroom and the terrace connecting the same. There was no
            other person. The cause of death of the deceased Usha Devi
            i.e. by a gunshot injury is not disputed. The fact that the terrace   E
            and the bedroom are adjoining each other is not in dispute.
            23. The autopsy report shows that ‘a blackening and charring’
            existed so far as Injury (i) is concerned. The blackening and
            charring keeping in view the nature of the firearm, which is
            said to have been used clearly go to show that a shot was fired       F
            from a short distance. Blackening or charring is possible when
            a shot is fired from a distance of about 2 feet to 3 feet. It,
            therefore cannot be a case where the death might have been
            caused by somebody by firing a shot at the deceased from a
            distance of more than 6 feet. The place of injury is also             G
            important. The lacerated wound was found over glabella
            (middle of forehead). It goes a long way to show that the same
            must have been done by a person who wanted to kill the
            deceased from a short distance. There was, thus, a remote
7
    (2007) 10 SCC 445                                                             H
766               SUPREME COURT REPORTS                          [2019] 9 S.C.R.


A                 possibility of causation of such type of injury by any other
                  person, who was not on the terrace. Once the prosecution has
                  been able to show that at the relevant time, the room and terrace
                  were in exclusive occupation of the couple, the burden of proof
                  lay upon the respondent to show under what circumstances
                  death was caused to his wife. The onus was on him. He failed
B
                  to discharge the same.”
            20. In Ram Gulab Chaudhary & Ors. v. State of Bihar8, this
      Court held as under:
               “24.       Even otherwise, in our view, this is a case where Section
C              106 of the Evidence Act would apply. Krishnanand Chaudhary
               was brutally assaulted and then a chhura-blow was given on the
               chest. Thus chhura-blow was given after Bijoy Chaudhary had
               said “he is still alive and should be killed”. The appellants then
               carried away the body. What happened thereafter to Krishnanand
               Chaudhary is especially within the knowledge of the appellants.
D              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
E              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
F              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
G              inference. We, therefore, see no substance in this submission of
               Mr Mishra.”
            21. With this background, the argument of learned counsel for the
      appellants is that recovery of dead body was at the instance of Mamta

      8
H         (2001) 8 SCC 311
        RANJIT KUMAR HALDAR v. STATE OF SIKKIM                               767
                  [HEMANT GUPTA, J.]

Mohanta and that there is no recovery in pursuance of disclosure             A
statement made by appellant-Ranjit Haldar. Therefore, the recovery of
dead body on the statement of wife of the deceased cannot be used
against the appellant. We do not find any merit in the said argument.
The consistent statement of the prosecution witnesses such as Jamyang
Bhutia (PW-5) corroborated by Ravi Deb (PW-3) is that the house in
                                                                             B
Rabom was taken on rent by the appellant- Ranjit Haldar. The dead
body was recovered in a gunny bag concealed under the wooden planks
covered by mud and stones. The cross-examination conducted on the
witnesses does not suggest that the renting of the premises by Ranjit
Haldar is disputed in any manner. There is no dispute that the lock of
the house was opened by the Police for the first time after Ranjit Haldar    C
locked the house and went to his native village. Therefore, in the absence
of any question on these aspects that the house was in his possession
and no one had access to that house, the burden of proving the fact that
somebody had access to the house during his absence was on him in
terms of Section 106 of the Act. The appellant Ranjit Haldar has not
                                                                             D
even suggested to the prosecution witnesses of possibility of access to
the house rented by him. The testimony of Jamyang Bhutia (PW-5) that
the house was taken on rent by Ranjit Haldar is proved and on the basis
of statement of Ravi Deb (PW-3), who is a Carpenter and was residing
in the same area, the appellant Ranjit Haldar has miserably failed to
disprove the presumption under Section 106 of the Act.                       E
       22. In respect of the appellant Mamta Mohanta, there is evidence
of recovery of dead body concealed in a house on the basis of her
disclosure statement, where she was allegedly living with the other
appellant along with the deceased and her two children. The recovery
of dead body concealed under the wooden planks covered by mud and            F
stones is very strong incriminating circumstance against Mamta Mohanta
to maintain her conviction. Apart from such incriminating circumstance,
there is a statement of Doma Lepcha (PW-2) before whom she has
confessed. Phurba Lepcha (PW-4) is the husband of Doma Lepcha
(PW-2) who supports this testimony.
                                                                             G
       23. The argument that Krishna Kanta Burman who translated the
Bengali version into Nepali was not examined when the above mentioned
First Information Report was lodged is wholly inconsequential. Such
First Information Report was only in respect of information of death.
The Investigating Officer has carried out investigation de-hors the
                                                                             H
768              SUPREME COURT REPORTS                        [2019] 9 S.C.R.


A     version given by the informant in the First Information Report. Therefore,
      non-examination of Krishna Kanta Burman does not create any doubt
      on the prosecution case.
             24. In respect of an argument that no DNA Test was conducted
      to identify the dead body, is not tenable. The dead body was recovered
B     on the statement of wife of the deceased who has stated in the disclosure
      statement that dead body of her husband is concealed under the wooden
      planks in a room which was in her possession. Apart from the said
      statement, Ravi Deb (PW-3) identified the dead body from the wearing
      apparels of the deceased such as sweater and a mala. None of the
      witnesses have been cross-examined to the effect that dead body was
C     not of the deceased. Therefore, the argument raised is not tenable.
            25. Both the Courts below have rightly recorded conviction of the
      appellants as the persons responsible for causing death of the deceased
      Netai Mohanta. Consequently, we do not find any error in the judgment
      passed by the Courts below which does not warrant any interference.
D     Accordingly, both the appeals are dismissed.


      Devika Gujral                                             Appeals dismissed.


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