KALU ALIAS LAXMINARAYANversusSTATE OF MADHYA PRADESH

                        [2019] 14 S.C.R. 327                             327


                KALU ALIAS LAXMINARAYAN                                  A
                                  v.
                 STATE OF MADHYA PRADESH
                 (Criminal Appeal No. 1677 of 2010)
                       NOVEMBER 07, 2019                                 B
             [NAVIN SINHA AND B.R. GAVAI, JJ.]
       Penal Code, 1860: s. 302 – Homicidal death within the
confines of house – Prosecution case was that appellant husband
strangulated his wife to death – Trial court held that the victim-
                                                                         C
deceased was strangulated to death while High Court opined that
she was hanged to death – Both the courts unanimously held that
deceased did not commit suicide but it was a homicidal death –
Conviction under s.302 – Appeal against conviction – Held: There
was evidence as to strained relations between appellant and his
wife (deceased) – Prosecution sufficiently established that there was    D
cow dung on the hands of the deceased indicating that she was
engaged in household chores when the assault was made – Injuries
on the person of the deceased as also in the post mortem report,
were clearly indicative of a struggle or resistance put up by deceased
in the last hour – The fact that the neck of deceased was not found
                                                                         E
stretched and elongated, considering that the body was still fresh,
ruled out any possibility of suicide by her – The view of trial court
that the deceased was strangulated to death acceptable as it was
not possible for appellant to hang the deceased alone – The body
was also found lying on the ground – The conduct of the appellant
in not conveying to the family members of the deceased about her         F
death and his absence whole night from the house and failure in
offering explanation with regard to circumstances under which the
deceased met an unnatural death inside the house would lead to
conclusion of his being the assailant of the deceased – Conviction
upheld.
                                                                         G
      Dismissing the appeal, the Court
     HELD: 1.1 The deceased lived alone with the appellant
and their minor child. The evidence of the relatives of the
deceased, PW 2, PW 4 and her parents PWs.6 and 8 revealed
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328           SUPREME COURT REPORTS                     [2019] 14 S.C.R.


A     that all was not well between the appellant and the deceased.
      Because of the strained relations between them, the deceased
      had stayed at her parents’ home for nearly 10 months prior to the
      occurrence and had returned barely a month before the fateful
      day after her father-in-law had come to take her back. There was
      no reason to disbelieve this part of evidence of PWs. 6 and 8.
B
      [Para 5][331-H; 332-A-B]
            1.2 The prosecution sufficiently established that there was
      cow dung on the hands of the deceased indicating that she was
      engaged in house hold chores when the assault was made. The
      injuries on the person of the deceased, as noticed in the inquest
C     report as also in the post mortem report, were clearly indicative
      of a struggle or resistance put up by the deceased in the last
      hour. The fact that the neck of the deceased was not found
      stretched and elongated, considering that the body was still fresh,
      ruled out any possibility of suicide by the deceased. The tongue
D     was not protruding. Scratches and abrasions would not be present
      in case of a suicide. There was no fracture or dislocation of the
      bones in the neck area. The saliva was not running down the face
      or chest of the deceased but had flowed out at the left of the
      mouth. [Paras 6, 8][332-D; 333-C-E]
E           Shambu Nath Mehra v. The State of Ajmer 1956 SCR
            199; Sawal Das v. State of Bihar (1974) 4 SCC 193 :
            [1974] 3 SCR 74; Jose v. The Sub-Inspector of Police,
            Koyilandy and Ors. (2016) 10 SCC 519 : [2016] 8 SCR
            115 – held inapplicable.

F           2. The High Court opined that the deceased had been
      hanged to death. Suicide was ruled out as the wooden log in the
      room used for storing grains from which a piece of a rope was
      found hanging was 11 ft. 2 inches in height from the floor. The
      deceased was of 5’4" and assuming that she would stretch out
      another one foot six inches it would still leave gap of 4 feet
G     between her and the log, therefore suicide was an impossibility.
      There was no reason to differ with the reasoning. The conclusion
      of the High Court also did not help the appellant in the defence
      of a suicide. The views taken by the Trial Court and the High
      Court nonetheless both pointed towards a homicidal death clearly.
H     The view of the Sessions Court that the deceased was strangulated
               KALU ALIAS LAXMINARAYAN v.                               329
                STATE OF MADHYA PRADESH

to death is accepted as it was not possible for the appellant to        A
hang the deceased alone. The body has also been found lying on
the ground. [Para 9][333-F-G]
      3. The prosecution was able to successfully establish a case
for a homicidal death inside the house where the deceased resided
with the appellant alone. The conduct of the appellant in this          B
background, now becomes important. If the deceased had
committed suicide, it is strange that the appellant laid her body
on the floor after bringing her down but did not bother to inform
anyone living near him much less the parents of the deceased.
There was no evidence that the information was conveyed to the
family members of the deceased by the appellant or at the behest        C
of the appellant. The appellant was also not found to be at home
when her family members came the next morning. The appellant
offered no defence whatsoever with regard to his absence the
whole night and on the contrary PW 3 attempted to build up a
case of alibi on behalf of the appellant, when he himself had taken     D
no such defence under Section 313, Cr.P.C. The occurrence had
taken place in the rural environment in the middle of the month
of October when it gets dark early. Normally, in a rural
environment people return home after dusk and life begins early
with dawn. It is strange that the appellant did not return home
the whole night and was taken into custody on 21.10.1994. In the        E
circumstances, the onus clearly shifted on the appellant to explain
the circumstances and the manner in which the deceased met a
homicidal death in the matrimonial home as it was a fact specifically
and exclusive to his knowledge. It is not the case of the appellant
that there had been an intruder in the house at night. Once the         F
prosecution established a prima facie case, the appellant was
obliged to furnish some explanation under Section 313, Cr.P.C.
with regard to the circumstances under which the deceased met
an unnatural death inside the house. His failure to offer any
explanation whatsoever therefore leaves no doubt for the
conclusion of his being the assailant of the deceased. [Paras 10,       G
11, 12, 15][333-H; 334-A-E; 337-D-E]
      Hanumant and Ors. v. State of Madhya Pradesh AIR
      1952 SC 343 : [1952] SCR 1091; Tulshiram Sahadu
      Suryawanshi and Ors. v. State of Maharashtra (2012)
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330            SUPREME COURT REPORTS                        [2019] 14 S.C.R.


A           10 SCC 373 : [2012] 7 SCR 1083; Trimukh Maroti
            Kirkan v. State of Maharashtra 2006 (10) SCC 681 :
            [2006] 7 Suppl. SCR156 – relied on.
                              Case Law Reference
      1956 SCR 199                     held inapplicable        Para 3
B
      [1974] 3 SCR 74                  held inapplicable        Para 3
      [2016] 8 SCR 115                 held inapplicable        Para 3
      [1952] SCR 1091                  relied on                 Para 12
      [2012] 7 SCR 1083                relied on                 Para 13
C
      [2006] 7 Suppl. SCR 156          relied on                Para 14
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      1677 of 2010.
            From the Judgment and Order dated 15.09.2009 of the High Court
D     of Madhya Pradesh, Bench at Indore in misc. Criminal Appeal No. 1320
      of 2000.
           Vinay Navare, Sr. Adv., A.P. Dhamija, J.P. Singh, Ms. Tanya
      Sharma, Sarad Kumar Singhania, Advs. for the Appellant.

E          Sunil Fernandes, AAG, Zeeshan Diwan, Ms. Priyansha Indra
      Sharma, Harsh Parashar, Advs. for the Respondent.
            The Judgment of the Court was delivered by
            NAVIN SINHA, J.
            1. The appellant, husband of the deceased, is aggrieved by his
F
      conviction under Section 302 of the Indian Penal Code (in short, ‘IPC’)
      affirmed by the High Court. There is no eye witness and the case rests
      only on circumstantial evidence.
             2. The deceased was married to the appellant approximately six
      to seven years back. Both of them were living alone in the house with
G     their minor child. On 14.10.1994, late in the evening, the family members
      of the deceased, who resided about 35-40 kms. away, received a
      telephone call that their daughter had died. They came the next morning
      at 06.00 AM and found the body of the deceased in the middle room of
      the house, lying on the ground covered with a white sheet. The first
H     information report was lodged at about 07.00 AM, the inquest report
              KALU ALIAS LAXMINARAYAN v.                                       331
       STATE OF MADHYA PRADESH [NAVIN SINHA, J.]

was prepared same day as also the post mortem was done in the                  A
afternoon. The police after completing investigation submitted charge
sheet under Section 306 and 498A, IPC. During the course of the trial,
considering the nature of evidence that emerged, the Sessions Judge
also added Section 302, IPC in the charges. The Sessions Judge held the
charge under Section 302 to be established as the deceased had been
                                                                               B
strangulated to death. The High Court in appeal opined that the deceased
had been hanged to death. Both the courts have unanimously held that
the deceased did not commit suicide but that it was a homicidal death.
       3. Learned senior counsel Shri Vinay Navare, appearing for the
appellant, submitted that the deceased had committed suicide. The
conviction of the appellant under Section 302 IPC was not justified. The       C
appellant has been acquitted of the charge under Section 498A. It was
impossible for the appellant to have alone forcibly hanged the deceased
from a height of 11 feet. The fact that the body was found lying on the
ground in the house, does not detract from the appellant’s defence that
she was brought down from the noose after she committed suicide and            D
the body laid on the ground. If the appellant had strangulated the deceased,
nothing prevented him from concealing the dead body or cremating her
in the night itself. His conduct is not conducive of his guilt. The mere
fact that the deceased died in unnatural circumstances inside the
matrimonial home cannot by itself be sufficient to shift the onus on the
appellant under Section 106 of the Indian Evidence Act, 1872 (hereinafter      E
called as “the Act”). The onus first lies on the prosecution to establish a
prima facie case of a homicidal death ruling out all possibilities of a
suicide. Reliance was placed on Shambu Nath Mehra vs. The State
of Ajmer, 1956 SCR 199; Sawal Das vs. State of Bihar, (1974) 4 SCC
193 and Jose vs. The Sub-Inspector of Police, Koyilandy and Ors.,              F
(2016) 10 SCC 519.
       4. Shri Sunil Fernandes, learned Addl. Advocate General appearing
on behalf of the respondent State, submitted that all the circumstances
in the case inevitably point towards the guilt of the appellant. Death was
homicidal in nature. The nature of oral, physical and medical evidence         G
completely rules out the defence of a suicide by the deceased.
      5. We have considered the submissions on behalf of the parties
and have also gone through the evidence and other materials on record.
The deceased lived alone with the appellant and their minor child. The
evidence of the relatives of the deceased, PW 2, PW 4 and her parents
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332            SUPREME COURT REPORTS                          [2019] 14 S.C.R.


A     PWs.6 and 8 reveal that all was not well between the appellant and the
      deceased. Because of the strained relations between them, the deceased
      had stayed at her parents’ home for nearly 10 months prior to the
      occurrence and had returned barely a month before the fateful day after
      her father-in-law had come to take her back. We find no reason to
      disbelieve this part of evidence of PWs. 6 and 8.
B
             6. PW 5 had deposed that he had seen cow dung on the hands of
      the deceased indicating that she was working when the homicidal assault
      had been made on her. He deposed having said so in his statement under
      Section 161, Cr.P.C. When the omission was pointed out to him in cross
      examination, he reiterated the same. This omission in his police statement
C     was put to PW 17, the Investigating Officer, under Section 145, Cr.P.C.
      The witness replied that he did not remember the statement made to him
      and not thatPW 5 had not made such a statement. The question was
      specifically put to the appellant under Section 313, Cr.P.C. also, to which
      he only gave a stock denial. The only defence taken by the appellant
      under Section 313 Cr.P.C. was that he had been falsely implicated. The
D
      prosecution has therefore sufficiently established that there was cow
      dung on the hands of the deceased indicating that she was engaged in
      house hold chores when the assault was made.
             7. The inquest report of the deceased noticed that her hair was
      open and scattered, both eyes were closed and froth was coming out of
E     the nose and mouth, the tongue was inside and the teeth visible. The
      right hand was on the stomach and the left hand was on the floor with
      the fist half open. There was a ligature mark at the back. On turning
      over the body, there was blackening on the back and in the loin area.
      The post mortem report estimated the age of the deceased as 22 years
F     and noticed the following:
                a) Froth marks blood is seen at the mouth and nostrils. The
                saliva is seen running out from left side of mouth and neck is
                tilted to left side. Ante mortem injuries were present. Abrasions
                varying in left from ¼” to ½” and varying in width from 1/8" to
                1/4" situated on dorsum of fingers of right hand are present.
G
                b) Abrasions on right forearm, upper dorsum signs ½” x ½”.
                c) On dissection of the subcutaneous at the ligature mark, it is
                dry, and the M.M. of troches is red and congested and contain
                forth tinged with blood. The right chamber of heart contained
H               blood and left chamber empty. The tongue caught between
                teeth.
              KALU ALIAS LAXMINARAYAN v.                                          333
       STATE OF MADHYA PRADESH [NAVIN SINHA, J.]

          d) There is well defined ligature mark, situated above the thyroid      A
          cartilage between larynx and chin 1" width and ½” deep directed
          obliquely upwards following the line mandible and reaching
          the mastoid process. The mark is interrupted at the back. The
          base of the mark is pale and hard and the margins are red and
          congested. The wound with crust and scan on left knee which
                                                                                  B
          appears to 7 to 12 days old.
          All the injuries were ante mortem in nature opining that the
          deceased had died of asphyxia following hanging.
       8. The injuries on the person of the deceased, as noticed in the
inquest report as also in the post mortem report, are clearly indicative of       C
a struggle or resistance put up by the deceased in the last hour. It is
unusual that if the deceased had committed suicide by hanging herself,
her right hand would be lying on the stomach and the left hand would be
on the ground with both fists half open. This is more of a probability if
the deceased was strangulated when life ebbed out of her slowly. The
fact that the neck of the deceased was not found stretched and elongated,         D
considering that the body was still fresh, rules out any possibility of suicide
by the deceased. The tongue was not protruding. Scratches and abrasions
would not be present in case of a suicide. There is no fracture or dislocation
of the bones in the neck area. The saliva was not running down the face
or chest of the deceased but had flowed out at the left of the mouth.             E
        9. The High Court opined that the deceased had been hanged to
death. Suicide was ruled out as the wooden log in the room used for
storing grains from which a piece of a rope was found hanging was 11
ft. 2 inches in height from the floor. The deceased was of 5’4" and
assuming that she would stretch out another one foot six inches it would          F
still leave gap of 4 feet between her and the log, therefore suicide was
an impossibility. We find no reason to differ with the reasoning. The
conclusion of the High Court, to our mind, also does not help the appellant
in the defence of a suicide. The views taken by the Trial Court and the
High Court nonetheless both point towards a homicidal death clearly.
We would rather be inclined to accept the view of the Sessions Court              G
that the deceased was strangulated to death as it would not also be
possible for the appellant to hang the deceased alone. The body has also
been found lying on the ground.
      10. The aforesaid factors leave us satisfied that the prosecution
has been able to successfully establish a case for a homicidal death              H
334            SUPREME COURT REPORTS                            [2019] 14 S.C.R.


A     inside the house where the deceased resided with the appellant alone.
      The conduct of the appellant, in the aforesaid background, now becomes
      important. If the deceased had committed suicide, we find it strange that
      the appellant laid her body on the floor after bringing her down but did
      not bother to inform anyone living near him much less the parents of the
B     deceased. There is no evidence that the information was conveyed to
      the family members of the deceased by the appellant or at the behest of
      the appellant. The appellant was also not found to be at home when her
      family members came the next morning. The appellant offered no defence
      whatsoever with regard to his absence the whole night and on the
      contrary PW 3 attempted to build up a case of alibi on behalf of the
C     appellant, when he himself had taken no such defence under Section
      313, Cr.P.C.
             11. The occurrence had taken place in the rural environment in
      the middle of the month of October when it gets dark early. Normally in
      a rural environment people return home after dusk and life begins early
D     with dawn. It is strange that the appellant did not return home the whole
      night and was taken into custody on 21.10.1994.
            12. In the circumstances, the onus clearly shifted on the appellant
      to explain the circumstances and the manner in which the deceased met
      a homicidal death in the matrimonial home as it was a fact specifically
E     and exclusive to his knowledge. It is not the case of the appellant that
      there had been an intruder in the house at night. In Hanumant and
      Ors. vs. State of Madhya Pradesh, AIR 1952 SC 343,it was observed
            “10. …..It is well to remember that in cases where the evidence
            is of a circumstantial nature, the circumstances from which the
F           conclusion of guilt is to be drawn should in the first instance be
            fully established, and all the facts so established should be consistent
            only with the hypothesis of the guilt of the accused. Again, the
            circumstances should be of a conclusive nature and tendency and
            they should be such as to exclude every hypothesis but the one
G           proposed to be proved. In other words, there must be a chain of
            evidence so far complete as not to leave any reasonable ground
            for a conclusion consistent with the innocence of the accused and
            it must be such as to show that within all human probability the
            act must have been done by the accused….”
H
            KALU ALIAS LAXMINARAYAN v.                                          335
     STATE OF MADHYA PRADESH [NAVIN SINHA, J.]

    13. In Tulshiram Sahadu Suryawanshi and Ors. vs. State of                   A
Maharashtra, (2012) 10 SCC 373, this Court observed:
     “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           B
     reasoning and reaches a logical conclusion as the most probable
     position. The above position is strengthened in view of Section
     114 of the Evidence Act, 1872. It empowers the court to presume
     the existence of any fact which it thinks likely to have happened.
     In that process, the courts shall have regard to the common course
     of natural events, human conduct, etc. in addition to the facts of         C
     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            D
     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                                      E

     “38. Vivian Bose, J., had observed that Section 106 of the Evidence
     Act is designed to meet certain exceptional cases in which it would
     be impossible for the prosecution to establish certain facts which
     are particularly within the knowledge of the accused. In Shambhu
     Nath Mehra v. State of Ajmer the learned Judge has stated the              F
     legal principle thus:
     ‘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,         G
     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.
                                                                                H
336            SUPREME COURT REPORTS                          [2019] 14 S.C.R.


A          The word “especially” stresses that. It means facts that are pre-
      eminently or exceptionally within his knowledge.”
            14. In Trimukh Maroti Kirkan vs. State of Maharashtra, 2006
      (10) SCC 681, this Court was considering a similar case of homicidal
      death in the confines of the house. The following observations are
B     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
C           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 — quoted
D           with approval by Arijit Pasayat, J. in State of Punjab v. Karnail
            Singh). The law does not enjoin a duty on the prosecution to lead
            evidence of such character which is almost impossible to be led
            or at any rate extremely difficult to be led. The duty on the
            prosecution is to lead such evidence which it is capable of leading,
E           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:
F
                   “(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
G           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
H
              KALU ALIAS LAXMINARAYAN v.                                      337
       STATE OF MADHYA PRADESH [NAVIN SINHA, J.]

       as to how the crime was committed. The inmates of the house            A
       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.
                                xxxxxxxx                                      B
       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       C
       that if the accused does not offer any explanation how the wife
       received injuries or offers an explanation which is found to be
       false, it is a strong circumstance which indicates that he is
       responsible for commission of the crime.”
       15. In view of our conclusion that the prosecution has clearly         D
established a prima facie case, the precedents cited on behalf of the
appellant are not considered relevant in the facts of the present case.
Once the prosecution established a prima facie case, the appellant was
obliged to furnish some explanation under Section 313, Cr.P.C. with regard
to the circumstances under which the deceased met an unnatural death
inside the house. His failure to offer any explanation whatsoever therefore   E
leaves no doubt for the conclusion of his being the assailant of the
deceased.
        16. We find no merit in the appeal. It is dismissed. The appellant
is stated to be on bail. His bail bonds are cancelled and he is directed to
surrender within two weeks for serving out his remaining period of            F
sentence.


Devika Gujral                                             Appeal dismissed.

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