Kulwant Kaur Etc v. State of Punjab

INoTHEoHIGHoCOURToOFoPUNJABoANDoHARYANAoAToCHANDIGARH

(341) CRA-D-238-DB-2005o(Oo&oM) Re e!"e#o$%&o05'02'2025 D()eo$*oP!$%$+%,e-e%)&o11'02'2025 o Kulwant Kaur and ors. .... Appellants V/s State of Punjab ...Respondent CORAM& HON.B/EoMR'oJU0TICEoGUR1INDERo0INGHoGI// HON.B/EoMR'oJU0TICEoJA0JITo0INGHoBEDI Present: Ms. Kashish Sahni, Advocate as Amicus Curiae for the appellants. Mr. Harkanwar Jeet Singh, AAG, Punjab. ***** oJA0JITo0INGHoBEDI2ooJ'o The present appeal has been filed against the judgment of conviction and order of sentence dated 18/20.01.2005 passed by the Sessions Judge, Kapurthala.

¶2The instant FIR came to be registered on 23.09.2003. The accused3appellants came to be convicted vide judgment of conviction and order of sentence dated 18/20.01.2005. The present appeal against the I attest to the accuracy andjudgment of conviction and order of sentence was filed on 21.03.2005. The matter has come up for final hearing now after more than 21 years of the registration of the FIR.

¶3The facts, in brief, are that Sucha Singh complainant, was working at the in Rail Coach Factory, Hussainpur, Kapurthala. His son Sohan Singh (deceased), who was also working at the Rail Coach Factory, Kapurthala, was married to Kulwant Kaur (accused3appellant No.1) daughter of Kashmira Singh, resident of Chhoti Tibbi Jejon, about 12 years ago. From this wedlock, two daughters and one son, were born. Sucha Singh, went came to meet his son, on the night of 22/23.09.2003, at about 10330/11300 pm, at his quarter No.2233, near Railway Station, Kapurthala. He knocked at the door of the quarter of Sohan Singh as the same was bolted from inside. He heard shrieks from inside the quarter. He looked into the quarter through a hole in the window, where the cooler was fixed. A light was glowing, inside the quarter. A rope of nylon, had been put in the neck of Sohan Singh, by Nathu Ram alias Laddi (accused3appellant No.3) and he was twisting the same. Gurdev Singh alias Mangi (accused3appellant No.2), was sitting on the chest of Sohan Singh and was pressing the same. Kulwant Kaur, daughter3in3law of Sucha Singh, and wife of Sohan Singh, had pressed his (Sohan Singh's) feet. Gurdev Singh alias Mangi was tying the hands and arms of Sohan Singh, with a scarf (Chunni). Sucha Singh, being perplexed, knocked at the door, with full force. Gurdev Singh alias Mangi and Nathu Ram alias Laddi opened the door and looked at Sucha Singh. They told him that in case he informed the police or raised an alarm, he would also be dealt with in the same manner, in which, Sohan Singh was being dealt with. They further told him that he should run away from the spot. Being afraid, Sucha Singh went to his quarter, situated at the Rail Coach Factory, Hussainpur, Kapurthala. On the morning of 23.09.2003, he told his othe son Sukhwinder Singh and other members of the family about above incident. He alongwith his son Sukhwinder Singh, reached the quarter of Sohan Singh at 7.00 a.m. on 23.09.2003 and saw that the door of the quarter was lying open. The dead body of Sohan Singh was lying there. Sukhwinder Singh was left to guard the dead body of Sohan Singh and Sucha Singh, proceeded towards the Police Station to lodge the report. About one and a half months earlier, Sohan Singh had told Sucha Singh that Kulwant Kaur, his wife, was having illicit relations with Nathu Ram alias Laddi and Gurdev Singh allas Mangi. He had further told Sucha Singh, that both these accused used to come to his quarter quite often. He had also told Sucha Singh that he was apprehending danger to his life at the hands of both these accused. Kulwant Kaur, Gurdev Singh alias Mangi and Nathu Ram alias Laddi, accused3appellants had committed the murder of Sohan Singh on account of illicit relations.

¶4On 23.09.2003, Gurmit Singh Inspector/SHO, P.S.City, Kapurthala, had held a picket at Aujla Level Crossing in the area of Kapurthala alongwith other police officials. At about 7.30 a.m, Sucha Singh3 complainant came to him at that place and made his statement Ex.PL narrating the allegations as above. It was read over and explained to him, who after admitting the same to be correct, signed it. Thereafter, an endorsement, Ex.PL/1, was appended thereon, by Gurmit Singh, Inspector and a Ruqa was sent to the Police Station, through Des Raj Constable, on the basis whereof, FIR, Ex.PL/3, was recorded by SI Sumandeep Singh. Thereafter, Gurmit Singh, Inspector, aforesaid, alongwith the complainant, reached Quarter No.2233, near Railway Station, RCF Colony, Kapurthala, which was the place of occurrence. About 10 respectable persons, were found present there. In their presence, the spot was inspected. The dead body of Sohan Singh, was lying on a bed, in a room, located near the entrance of the gate of the said quarter. Site plan, Ex.PM, was prepared with correct marginal notes. One rope (Rassi i.e. a piece of nylon Niwar) about 2½ feet, in length, having knots on both ends, one scarf (Chunni) having embroidery, one strip of alpics tablets (Patta), two photographs lying on the TV, wrapped in a paper, which were of Kulwant Kaur and Gurdev Singh alias Mangi one purse, containing one passport size photo, one driving licence, one handwritten slip of Kulwant Kaur and one currency note of Rs.10/3 were lifted from the spot. These were taken into possession vide memo Ex.PH attested by Rajinder Singh ASI and Pargat Singh Head Constable. Thereafter, inquest report Ex.PK, of the dead body of Sohan Singh was prepared. The dead body was identified by Gulzar Singh and Inderjit Singh. The statements of Gulzar Singh and Inderjit Singh were recorded under Section 175 Cr.PC. The dead body of Sohan Singh, was handed over to HC Pargat Singh and Kuldip Singh Constable, for getting the post3mortem examination conducted, alongwith the request Ex.PD from Civil Hospital, Kapurthala. Gurmit Singh Inspector, alongwith other police officials, started for the Police Station and when they reached Garari Chowk, Kapurthala, secret information was received that the accused were roaming about in the City. A picket was held in D.C.Chowk, Kapurthala. At about 4.30 p.m. Kulwant Kaur, Nathu Ram alias Laddi and Gurdev Singh alias Mangi, accused3appellants were seen coming. They were arrested with the help of other police officials. Their arrest memos Ex.PN, Ex.PN/1, and Ex. PN/2, respectively were prepared. Thereafter, the police party was coming back to the Police Station. On the way, at Phuwara Chowk, Kapurthala, Pargat Singh, Head Constable and Kuldip Singh Constable, met it. They produced the clothes of the deceased. These clothes were converted into a parcel, sealed with the seal, bearing impression GS and taken into possession, vide memo Ex. PJ, attested by Rajinder Singh, ASI, Pargat Singh Head Constable and Kuldip Singh Constable. Thereafter, the police party returned to the Police Station. The case property was deposited with the MHC with seals Intact.

¶5On 24.09.2003, the accused were produced before the Illaqa Magistrate. They were interrogated. On 30.09.2003, Gurmit Singh Inspector, alongwith other police officials, went to Quarter No.4213B, belonging to Sucha Singh3complainant. Jasbir Singh ASI, also accompanied them. Surinder Kumar, Photographer, was also present with them at that time. Не was having a Video camera at that time. Manpreet, Harpreet and Bhupinder Singh, children of Sohan Singh, deceased and Sucha Singh were present there. Manpreet Kaur daughter of Sohan Singh3deceased, was put questions and video movie of her statement, recorded in 'Question Answer' form, was prepared. She stated that Gurdev Singh alias Mangi and Nathu Ram alias Laddi, accused3appellants No.2 and 3, used to come to their house. She disclosed that Nathu Ram alias Laddi and Gurdev Singh alias Mangi accused, came to their house on the night intervening 22/23.09.2003. Gurdev Singh alias Mangi, Nathu Ram alias Laddi and Sohan Singh, her father, took liquor together. When they became intoxicant, the light was glowing. Nathu Ram alias Laddi, accused3appellant No.3, strangulated the throat of Sohan Singh, with a string. Gurdev Singh alias Mangi, accused3 appellant No.2, sat on his chest whereas, Kulwant Kaur, accused3appellant No.1, had held him by his feet. Jasbir Singh, ASI, was recording the questions and answers simultaneously. Video Script, Ex.PL/1, was prepared with regard to the questions and answers aforesaid, which was signed by Jasbir Singh, ASI and Sucha Singh. Video Cassette, Ex.P18, so prepared, was taken into possession. After the completion of investigation, the accused

¶6On commitment, charge under Section 302 read with Section 34 of the Indian Penal Code was framed against the accused. They pleaded not guilty to the charge and claimed trial.

¶7The prosecution in support of its case, examined as many as 9 witnesses. Dr.Kamaljit Singh, Medical Officer, Civil Hospital, Kapurthala, PW31 on 23.09.2003, conducted the post mortem examination, on the dead body of Sohan Singh son of Sucha Singh, Caste Julaha, resident of Quarter No.2233, near Railway Station, RCF Colony, Kapurthala, 36 years, male. He found the following injury, on his person :3 1)oThereowasoligatureomarkopresentoonoanterioroandolateral partsoofoneck,ocrossingolaryngealoprominanceomeasuringo36ocm xo2ocmoextendingoposterioroin eriorlyotowardsoposterioropartoof neck!o11ocmoposterioroneckoareaowasospared!oTheoligatureomark wasowellodefined,olessoprominentoonoedgeso"othosides,o"rownish inocolour!o#nodissection,o$oftoTissuesounderlyingoligatureomarks wereodry,ohard,oglistening,opatechialohemorrhageowereopresent atoplaces,osoftotissuesoandomusclesoofoneckowereocongested! %uscles,oma&oro essels,ocer icalo erti"reeowereointact!oThere wasofractureoofolaryngealo"one,otrachealoringounderoligature mark!o'aryngealoca ityowasofulloofo"lood!o(toedgeso"othosides underlyingotissueopressureosignsodecreasing!

¶8The probable time that lapsed between injury and death, was immediate and between the death and post3mortem was within 12 to 18 hours. The cause of death, in this case, was not given at the time of post3 SUKHPREET KAUR mortem examination. It was to be given after the receipt of the report of the Chemical Examiner to whom the viscera of the deceased was sent. He proved Ex.PA, the exact carbon copy of the post3mortem report and Ex.PA/1 and Ex.PA/2, the pictorial diagrams. On receipt of the report of the Chemical Examiner Ex.PB, no poison was detected in the viscera of the deceased. In the opinion of the Doctor, the cause of deat, in this case was asphyxia as a result of injury on the neck described which was sufficient to cause death in the ordinary course of nature. The Doctor sent the report Ex.PC, in this regard to the police.

¶9Sucha Singh PW37 the complainant made his statement with regard to the date, time and place of occurrence and the illicit relations, Kulwant Kaur, one of the accused, was carrying on with the other two accused. Manpreet Kaur PW38, a child witness and daughter of Sohan Singh, who was present in the quarter at the time of occurrence also made a statement to the similar effect.

¶10Sukhwinder Singh, Ahlmad (Criminal), in the Court of the Chief Judicial Magistrate, Kapurthala, stated that on 28.09.2003, an application Ex. PE was moved by the police by before Sh.A.L.Khichi, Addl. Chief Judicial Magistrate, Kapurthala, for obtaining the specimen signatures of Kulwant Kaur, accused, but she was not prepared to give her specimen signature, as the police had already obtained her signatures thereon. His statement, Ex.PE/1, was recorded by the Addl. Chief Judicial Magistrate, Kapurthala, which was thumb3marked by Kulwant Kaur. Surinder Kumar Chopra, PW3, took the photographs of the place of occurrence, near the Railway Station, RCF Colony, Kapurthala. He handed over the negatives, Ex. P3 to Ex.P6 and the photographs Ex.P7 to Ex.P10 to the police. Vijay Anand, PW34 prepared the scaled map Ex.PF, of the place of occurrence. Nirvail Singh, Constable PW35, delivered the special report Ex.PG to the Illaqa Magistrate. Pargat Singh, Head Constable PW36, was a witness to the recovery memo, Ex.PH, vide which, the articles lying near the dead body, were lifted and taken into possession. He also got conducted the post3 mortem examination on the dead body of Sohan Singh. He was handed over the clothes of the dead body by the Doctor. He handed over the same to Gurmit Singh, Inspector.

¶11Gurmit Singh, Inspector PW39, was the Investigating Officer and his testimony already stands narrated here.

¶12The Public Prosecutor gave up Kuldip Singh, Inderjit Singh Constables, Gulzar Singh Head Constable, Rajinder Singh ASI, Sukhwinder Singh MHC, Sumandeep Singh Sub Inspector, Harpreet Kaur and Bhupinder Singh Prosecution Witnesses, as unnecessary and closed the prosecution evidence.

¶13The statements of the accused3appellants were recorded under Section 313 Cr.P.C. All the incriminating circumstances, appearing against them in prosecution evidence were put to them. Kulwant Kaur, accused3appellant No.1, in her statement, under Section 313 Cr.PC stated that she was innocent. Sohan Singh3deceased had gone out of the house in the evening and did not return. In the morning, when the police came, he was found dead in the quarter of Gurmukh Singh. She stated that nothing was recovered from her house. All the articles allegedly recovered were planted upon her in the morning. The police forced her to write down on the papers and sign the same. The police also forced her to give snaps with Gurdev Singh alias Mangi, which were clicked. The video film was also prepared after tutoring Manpreet Kaur by her grandfather3Sucha Singh. She stated that she had been falsely implicated in this case by Sucha Singh as her relations with her in3laws were not cordial. Gurdev Singh alias Mangi, accused3appellant No.2, in his statement under Section 313 Cr.PC, claimed that he was innocent. He stated that on 23.09.2003, in the morning, he was arrested by the police from his house and was brought to quarter No.2235 of Gurmukh Singh and was forced by the police to give a photo with Kulwant Kaur. He stated that he had been falsely implicated in this case. Nathu Ram alias Laddi, accused3appellant No.3, in his statement under Section 313 Cr.PC, stated that he was innocent. He had been arrested by the police from his house and was falsely implicated in this case.

¶14Based on the evidence led, the accused3appellants, namely, Kulwant Kaur, Gurdev Singh alias Mangi and Nathu Ram alias Laddi came to be convicted and sentenced by the Court of the Sessions Judge, Kapurthala vide judgment of conviction and order of sentence dated 18/20.01.2005 as under:3 O**e%,eoU30 0e%)e%,eoRI30I F4%e RI30Io4%o#e*(+5)o$* 6(7-e%)o$*o*4%e 302/34 IPC Life Imprisonment Rs.2,000/3 RI 01 month each each each

¶15The aforementioned judgment of conviction and order of sentence dated 18/20.01.2005 passed by the Sessions Judge, Kapurthala, is under challenge before this Court.

¶16During the pendency of this appeal, the sentences of the accused3appellants, namely, Kulwant Kaur, Gurdev Singh alias Mangi and Nathu Ram alias Laddi were suspended by this Court vide orders dated

29.02.2008, 16.02.2009 and 25.03.2009 respectively.

¶17The learned Amicus Curiae for the accused3appellants contends that the testimony of PW37/complainant3Sucha Singh cannot be believed and he does not appear to be an eye3witness. His unnatural conduct at the spot makes his presence doubtful. As per his deposition, he travelled 7½ kms. from his own quarter to that of his son at 10.30 p.m. at night, saw the occurrence, was threatened by the accused, did not interfere or approach the neighbours or the police, came back home and went back the next day with I attest to the accuracy andhis other son. (PW36/Head Constable Pargat Singh has also admitted that there was a police post at the Railway Coach Factory). The complainant has admitted that Police Station Sadar, Kapurthala was on the way to the house of his son, the police post of the Railway Coach Factory was 75 yards from the house of his son and Police Station City, Kapurthala was half kilometer away from the house of his son. Other residential houses were around but he did not raise an alarm. Therefore, no reliance can be placed on his testimony.

¶18She contends that PW38/Manpreet Kaur, the daughter of the deceased and accused3Kulwant Kaur has rightly been disbelieved by the Trial Court. Her statement during the course of investigation under Section 161 Cr.P.C. was recorded on 30.09.2003, seven days after the occurrence. During the course of her cross3examination, she has categorically admitted that she was residing with her grand3father/PW373Sucha Singh and he alongwith her uncle3Balbir Singh had tutored her to make a statement after which the police had got prepared her video film. She has further stated that the occurrence had taken place in the room in which she alongwith her siblings were sleeping and after the murder of her father, she had gone to sleep. Thus, conduct of this witness is highly unnatural. The learned Amicus Curiae, therefore, contends that the testimony of this witness cannot be accepted and has been so held by the Trial Court.

¶19She next contends that the place of occurrence is doubtful inasmuch as the prosecution has not been able to bring on record whether the body of the deceased was found in a quarter No.2233 or in quarter No.2235 which stands in the name of one Gurmukh Singh. This lacuna in the investigation creates a doubt in the entire prosecution case because of which the accused are liable to be acquitted.

¶20She further contends that the two photographs of Kulwant Kaur and Gurdev Singh @ Mangi together, allegedly recovered from quarter No.2233 cannot read in evidence in the absence of the photographer being examined and the negatives being brought on record. Therefore, there is no motive for the commission of the offence. Reliance is placed on 'Stateoof GujaratoversusoBharatoaliasoBhupendrao1991oCriLJo978,oJoyitaoSaha versusoRajesho u!aro"andeyo#$$$%#&oLJRo7'8oando(runoBala)rishano*yer ando(nothersoversuso+,sooSonio-ospitaloando.therso#$$/%1&oCivCCo18012

¶21She, lastly, contends that if this Court was to reject the testimonies of PW37/Sucha Singh and PW38/Manpreet Kaur alongwith the photographs Ex.P315 and P316 purportedly showingotheoaccused3appellant No.1/Kulwant Kaur in the company of accused3appellant No.2/Gurdev Singh @ Mangi, then atleast Gurdev Singh @ Mangi and accused3appellant No.3/Nathu Ram @ Laddi ought to be acquitted and the liability, if any, would fall on Kulwant Kaur alone in whose residence the occurrence has taken place in view of Section 106 of the Evidence Act.

¶22The learned counsel for the State, on the other hand, contends that the testimony of PW37/Sucha Singh3complainant is consistent in material particulars. His version cannot be doubted. He saw the occurrence in which his son was assaulted but out of fear, ran away from the spot. Every human being reacts to a situation in a different way and therefore, merely because this witness ran away from the spot does not create a doubt in his version. He contends that the testimony of PW38/Manpreet Kaur has wrongly been disbelieved by the Trial Court. She was a most natural witness being the daughter of the deceased3Sohan Singh and the accused3 Kulwant Kaur and therefore, her presence at the spot cannot be doubted. The photographs of accused3Gurdev Singh @ Mangi and Kulwant Kaur were recovered from the spot which points towards the motive for the murder of the deceased3Sohan Singh. He, therefore, contends that the present appeal is liable to be dismissed.

¶23We have heard the learned counsel for the parties.

¶24PW37/Sucha Singh3complainant is the father of the deceased. As per the FIR and as per his deposition, he had gone to the house of his son at 10.30 p.m. at night, knocked at the door which was not opened. Thereafter, he saw the occurrence from a window in which the cooler had been fitted, after which he shouted on which the accused persons came out and threatened him. Out of fear, he went away from the spot back to his house, disclosed about the incident to his son3Sukhwinder Singh and came back to the quarter of the deceased next day. This conduct of this witness is most unnatural. His going to the place of occurrence which was 7½ Kms. from his own house at 10.30 p.m. itself is doubtful. He saw the occurrence, did not interfere in the beating being given to his son, chose not to shout or raise an alarm so as to awaken the neighbours or approach the police of police post, Railway Coach Factory which was only 75 yards away, Police Station City Kapurthala which was only half a kilometer away or Police Station Sadar Kapurthala which was on the way back to his house, certainly, is unnatural conduct of a witness who is none other than the father of the deceased. Therefore, his presence at the spot is highly doubtful and therefore, we have no hesitation in holding that he did not witness the occurrence but has been set3up as a prosecution witness by the investigating agency.

¶25As regards PW38/Manpreet Kaur, we wish to highlight that her statement during the course of investigation under Section 161 Cr.P.C. was recorded only on 30.09.2003 i.e. seven days after the occurrence. She has admitted in her cross3examination that she was tutored to make the statement by her uncle3Balbir Singh and grand3father/Sucha Singh3 complainant with whom she was residing. Therefore, her deposition has rightly been disbelieved by the Trial Court and we are also of the same opinion that her testimony cannot be accepted.

¶26As regards the place of occurrence, a map attached to the inquest report categorically shows that the body was lying in quarter No.2233 occupied by Sohan Singh (deceased). Quarter No.2232 is to the South and is occupied by Balwinder Singh, to the North, firstly, quarter No.2234 in the possession of Bishan Dass and further up is quarter No.2235 in the occupation of Gurmukh Singh. In the scaled site plan Ex.PF, the dead body is shown to be in quarter No.2233 in the possession of Sohan Singh3 deceased. To the South is quarter No.2232 in the possession of Balwinder Singh and to the North, quarter No.2234 is in the possession of Bishan Dass. PW39/Gurmit Singh Inspector/SHO has admitted categorically in his cross3 examination that the body was found in quarter No.2233 which was in the possession of Sohan Singh and dead body was not shown in the quarter No.2235 of Gurmukh Singh. At the time, when the charges under Sections 302 read with Section 34 IPC were framed against Kulwant Kaur, she admitted that she was residing in quarter No.2233. Various recoveries such as a leather purse containing photographs, a driving licence, two photographs purportedly of Kulwant Kaur and Gurdev Singh @ Mangi, etc. have been shown to be effected from quarter No.2233 itself. Thus, there is absolutely no doubt that Sohan Singh alongwith Kulwant Kaur and his children were residing in this quarter No.2233 where he was done to death.

¶27Asoregardsoadmissibilityoofophotographsoasoevidence,oino'State ofoGujaratoversusoBharatoaliasoBhupendrao1991oCriLJo978',otheoGujarat HighoCourtoheldoasounder:-

13.oTheolearnedoAdditionaloSessionsoJudgeohasogivenotooomuch importanceotoophotographsoofoplaceoofoincident,oExhs.o15,o16, 18,o19oando20.oTheseophotographsodoonotoshowoanyoelectricopole inotheostreet.oItosurpassesoone'soimaginationoasotoohowothese photographs o could o have o been o produced o in o the o cross-examinationoofoprosecutionowitnesses.oInocross-examinationoof witnessoRasiklal,oCircleoInspector,otwoophotographsohaveobeen produced.oOtherothreeophotographsohaveobeenoproducedoin cross-examinationoofoNautamoBhaio(Exh.o17).oTheowitnesses haveonototakenotheophotographs.oNoooneoknowsowhenothe photographsohaveobeenotaken.oItoisoalsoonotodisclosedoasotoofrom whichoangleoandofromowhichoplaceotheophotographsohaveobeen taken.oNegativesoofotheophotographsoareonotoproducedoon record.oAsofaroasotheoplaceoofoincidentooroforothatomatteroany placeoofowhichodemarcationsoandodelineationsoareorequiredoto beonoted,ophotographs,oevenoifodulyoprovedowouldonotobeogood pieceoofoevidence.oInotheocaseoofoUnitedoStatesoShippingoBoard v.oTheoShipo"St.oAlbans"0oAIRo1931oPrivyoCouncilo189oitoisointer aliaoobservedothatoitoisonecessaryotoolimitocarefullyotheousesofor which,ouponomereoproductionoofothem,ophotographsocanobe acceptedoasomeansoofoproofoofomattersoofofact.oAophotographic picture o cannot o be o relied o upon o as o proof o in o itself o of o the dimensionsoofotheodepictedoobjectooroobjects,oandocannotobe madeoproperlyoavailableotooestablishotheorelativeoproportionsoof suchoobjectsoexceptobyoevidenceoofopersonaloknowledgeoor I attest to the accuracy and scientificoexperienceotoodemonstrateoaccuratelyotheofactsosought toobeoestablished.oInothisoviewoofotheomatteroreliance,oplacedoby theolearnedoAdditionaloSessionsoJudgeoonophotographsoExhs. 15,o16,o18,o19oando20oandoparticularlyoExhs.o15oando16ofor holdingothatostreetoNo.o4oinoVamaoVadiocannotobeotheosceneoof offenceoisonotosustainable.oOnotheocontraryotheseophotographs oughtonototoohaveobeenoadmittedoinoevidenceowithoutoexamining theopersonowhootookotheophotographsoandotheonegativesoofothe sameobeingoproducedoonorecord.oEvenowhenorightlyoadmittedoin evidence,otheiroevidentiaryovalueoisoalmostonil.oThisoevidenceoof photographs,oordinarilyocannotobeousedotoocontradictotheoeye-witness o account o and o the o evidence o of o panch o as o well o as investigatingoofficer. In o'JoyitaoSahaoversusoRajeshoKumaroPandeyo2000(2)oLJR 768',otheoCalcuttaoHighoCourtoheldoasounder:-

39.oHowever,oifoweogoothroughotheoevidenceoofoDW-2onamely,othe priestowhoohadoperformedotheomarriage,oweowillofindothatoDoW-2 had o made o categorical o statements o that o all o the o ceremonies performedoforotheomarriageoofoaoHinduowereonotoperformed, speciallyoSaptapadiowasonotoperformedoandosooalsooKanyadan. Heofurtherostatedothatoheohadorushedothroughotheomarriage ceremonyoonotheoadviceoofotheorespondentoandotheoExhibito'D' issuedobyohimowasoissuedoatotheoinstanceoofotheorespondentoand hisofather.oAsoweohaveoalreadyoobservedothatosinceotheoDW-2 wasonotodeclaredoasoaohostileowitness,oweofindonooreasonoto disbelieveohisostatement.oMainlyouponorelyingotheophotographs beingoExhibito'E'oseries,owhoseonegativesowereonotoonorecord, theoCourtobelowoshouldonotohaveoheldothatotheoallegedomarriage SUKHPREET KAUR between otheo appellanto and o theo respondent o was o performed accordingotootheoVedicoritesoandocustoms,omoreso,owhenosuch photographsowereoinadmissibleoinoevidence. ino 'ArunoBalakrishanoIyeroandoAnothersoversusoM/so oSoni HospitaloandoOtherso2004(1)oCivCCo183',otheoMadrasoHighoCourtoheldoas under:-

27.oP.W.3oinohisoevidenceohasostatedothatotheopadowasofound rolledo"inside"otheointestine.oAlsooP.W.3ohasostatedothatoheohad takenotheophotographoofotheopadoremovedofromotheointestineoof theosecondoplaintiff.oBut,otheophotographoandotheopadowhichohad theoinscriptiono"SonioHospital"ocannotobeotakenoasoevidence withoutotheonegativeobeingoproduced;ohence,oitoisoinadmissible inoevidence.oTheoPrivyoCounciloinotheocaseoof oUnitedoStates ShippingoBoardov.oShipoSt.oAbbans,oAIRo1931oPrivyoCouncil 189, o has o held o that o photograph o by o itself o is o not o proof o of dimensionsoandorelativeoproportionsoofotheoobjectodepicted.oThe counseloforodefendantsoalsooreliedouponoitodecisionoofoGujarat HighoCourtoreportedoino1991oCrioLJo978othatophotographois inadmissibleowhenotheopersonowhootookotheophotographowasonot examinedoandowhenotheonegativesoareonotoproduced.oThisoCourt hasoalsooheldosooinoaonumberoofocases.oHence,otheophotographoof theoabdominalopadowithoinscriptionoofoSonioHospitalodoesonot helpotheoplaintiffs,oasotheophotographsoinadmissibleoinoevidence withoutotheonegatives.

¶28Comingobackotootheofactsoofotheopresentocase,otheoprosecution has o sought o to o establish o motive o not o only o from o the o deposition o of o the SUKHPREET KAUR complainant-Sucha o Singh o (PW-7) o but o also o from o two o photographs purportedly recovered from the place of occurrence showing Kulwant Kaur in close proximity of Gurdev Singh @ Mangi. The said photographs have been placed on record as Ex.P315 and P316. As regards evidence of photographs, it has been categorically held that in the absence of the photographer who has taken the photographs and the negatives of the photographs being brought on record, the said photographs are inadmissible in evidence. Therefore, the recovery of these photographs does not further the case of the prosecution.

¶29Undoubtedly, as has been found by us, the occurrence took place in quarter No.2233 which was occupied by the deceased3Sohan Singh, his wife3Kulwant Kaur (accused3appellant No.1) and their children including PW38/Manpreet Kaur. The deceased died a homicidal death and from the spot, amongst other articles, a piece of nylon rope measuring 2½ feet in length was recovered alongwith a green colouredo chunni! As per the prosecution case, they were used to strangulate the deceased. However, the stand taken by Kulwant Kaur in her statement under Section 313 Cr.P.C. is that Sohan Singh (deceased) went out of the house in the evening and did not return in the morning. His body was found in quarter No.2235 belonging to Gurmukh Singh. This defence furnished by the accused3 Kulwant Kaur cannot be accepted in view of our categoric finding on the basis of the evidence on record that the occurrence took place in quarter No.2233. In this situation, it becomes imperative for the accused3Kulwant Kaur to explain how the deceased was done to death in a house of which she alongwith the accused was a resident.

¶30Section 106 of the Evidence Act states that the burden of proving a fact especially within the knowledge of a person is upon him. Section 106 of the Evidence Act reads as under:3 o1$'2oBurdenoofoprovin3ofa4toespe4iallyo5ithino)no5led3e66 >henoanyofactoisoespeciallyowithinotheoknowledgeoofoanyoperson, theo"urdenoofopro ingothatofactoisouponohim! /llustrationso4a)o>henoaopersonodoesoanoactowithosomeointention otherothanothatowhichotheocharacteroandocircumstancesoofothe actosuggest,otheo"urdenoofopro ingothatointentionoisouponohim! 4")o(oisochargedowithotra ellingoinoaorailwayowithoutoaoticket! Theo"urdenoofopro ingothatoheohadoaoticketoisoonohim!o2o

¶31Ino '(nees o versus o 7he o State o Govt2 o of o 8C7 o #$#/%#& RCR%Cri!inal&o89'1, one Anees had allegedly committed the murder of his wife in their home. Their minor daughter3Shaheena was the sole eye3 witness to the occurrence. However, Shaheena did not support the prosecution case and was declared a hostile witness. Despite the said fact, the Trial Court convicted the accused. An appeal was filed before the High Court, Delhi which came to be dismissed. The convicted accused approached the Hon'ble Supreme Court and in the context of Section 106 of the Evidence Act, the Hon'ble Supreme Court held as under:3 36!o$ectiono1.6oofotheo* idenceo(ctoreferredotooa"o eopro ides SUKHPREET KAUR thatowhenoanyofactoisoespeciallyowithinotheoknowledgeoofoany person,otheoburdenoofoprovingothatofactoisouponohim.oTheoword "especially"omeansofactsothatoareopre-eminentlyooroexceptionally withinotheoknowledgeoofotheoaccused.oTheoordinaryoruleothat applies o to o the o criminal o trials o that o the o onus o lies o on o the prosecutionotooproveotheoguiltoofotheoaccusedoisonotoinoanyoway modifiedobyotheoruleoofofactsoembodiedoinoSectiono106oofothe EvidenceoAct.oSectiono106oofotheoEvidenceoActoisoanoexceptionoto Section o 101 o of o the o Evidence o Act. o Section o 101 o with o its illustrationo(a)olaysodownotheogeneraloruleothatoinoaocriminal caseotheoburdenoofoproofoisoonotheoprosecutionoandoSectiono106 isocertainlyonotointendedotoorelieveoitoofothatoduty.oOnothe contrary,oitoisodesignedotoomeetocertainoexceptionalocasesoin whichoitowouldobeoimpossible,ooroatoanyorateodisproportionately difficult,oforotheoprosecutionotooestablishotheofactsowhichoare, "especiallyowithinotheoknowledgeoofotheoaccusedoandowhich,ohe canoproveowithoutodifficultyooroinconvenience".

37.oInoShambhuoNathoMehraov.oTheoStateoofoAjmer,oAIRo1956oSC 404, o this o Court o while o considering o the o word o "especially" employedoinoSectiono106oofotheoEvidenceoActospeakingothrough VivianoBose,oJ.,oobservedoasounder: "11.o...oTheowordo"especially"ostressesothatoitomeansofacts that o are o pre-eminently o or o exceptionally o within o his knowledge. o If o the o section o were o to o be o interpreted otherwise,oitowouldoleadotootheoveryostartlingoconclusion thatoinoaomurderocaseotheoburdenoliesoonotheoaccusedoto proveothatoheodidonotocommitotheomurderobecauseowho couldoknowobetterothanoheowhetheroheodidoorodidonot. Itoisoevidentothatothatocannotobeotheointentiono&otheoPrivy Councilohasotwiceorefusedotooconstrueothisosection,oas reproducedoinocertainootheroActsooutsideoIndia,otoomean thatotheoburdenoliesoonoanoaccusedopersonotooshowothatohe didonotocommitotheocrimeoforowhichoheoisotried.oThese SUKHPREET KAUR casesoareoAttygalleov.oTheoKing,o1936oPCo169o(AIRoVo23) I attest to the accuracy and (A)oandoSeneviratneov.oR.o1936-3oAlloERo36oAToP.o49o(B)."

38.oTheoaforesaidodecisionoofoShambhuoNatho(supra)ohasobeen referredotooandoreliedouponoinoNagendraoSahov.oStateoofoBihar,

(2021)o10oSCCo725,owhereinothisoCourtoobservedoasounder: "22.oThus,oSectiono106ooofotheoEvidenceoActowilloapplyoto thoseocasesowhereotheoprosecutionohasosucceededoin establishingotheofactsofromowhichoaoreasonableoinference canobeodrawnoregardingotheoexistenceoofocertainoother factsowhichoareowithinotheospecialoknowledgeoofothe accused. o When o the o accused o fails o to o offer o proper explanationoaboutotheoexistenceoofosaidootherofacts,othe courtocanoalwaysodrawoanoappropriateoinference.

23.oWhenoaocaseoisorestingoonocircumstantialoevidence,oif theoaccusedofailsotooofferoaoreasonableoexplanationoin dischargeoofoburdenoplacedoonohimobyovirtueoofoSection 106oofotheoEvidenceoAct,osuchoaofailureomayoprovideoan additionalolinkotootheochainoofocircumstances.oInoaocase governedobyocircumstantialoevidence,oifotheochainoof circumstancesowhichoisorequiredotoobeoestablishedobyothe prosecutionoisonotoestablished,otheofailureoofotheoaccused to o discharge o the o burden o under o Section o 106 o of o the EvidenceoActoisonotorelevantoatoall.oWhenotheochainoisonot complete,ofalsityoofotheodefenceoisonoogroundotooconvict theoaccused." (Emphasisosupplied)

39.oInoTulshiramoSahaduoSuryawanshioandoAnr.ov.oStateoof Maharashtra,o(2012)o10oSCCo373,othisoCourtoobservedoas under: "23.oItoisosettledolawothatopresumptionoofofactoisoaoruleoin lawoofoevidenceothatoaofactootherwiseodoubtfulomayobe inferredofromocertainootheroprovedofacts.oWhenoinferring theoexistenceoofoaofactofromootherosetoofoprovedofacts,othe courtoexercisesoaoprocessooforeasoningoandoreachesoa logicaloconclusionoasotheomostoprobableoposition.oThe aboveopositionoisostrengthenedoinoviewoofoSectiono114oof theoEvidenceoAct,o1872.oItoempowersotheocourtotoopresume theoexistenceoofoanyofactowhichoitothinksolikelyotoohave SUKHPREET KAUR happened.oInothatoprocess,otheocourtsoshallohaveoregardoto theocommonocourseoofonaturaloevents,ohumanoconduct, etc. o in o addition o to o the o facts o of o the o case. o In o these circumstances,otheoprinciplesoembodiedoinoSectiono106oof theoEvidenceoActocanoalsoobeoutilised.oWeomakeoitoclear thatothisosectionoisonotointendedotoorelieveotheoprosecution ofoitsoburdenotooproveotheoguiltoofotheoaccusedobeyond reasonableodoubt,obutoitowouldoapplyotoocasesowhereothe prosecutionohasosucceededoinoprovingofactsofromowhichoa reasonable o inference o can o be o drawn o regarding o the existenceoofocertainootherofacts,ounlessotheoaccusedoby virtueoofohisospecialoknowledgeoregardingosuchofacts, failedotooofferoanyoexplanationowhichomightodriveothe courtotoodrawoaodifferentoinference.oItoisousefulotooquote the o following o observation o in o State o of o W.B. o v. o Mir MohammadoOmaroandoOrs.o[(2000)o8oSCCo382o:o2000 SCCo(Cri)o1516]o:o(SCCop.o393,oparao38) "38.oVivianoBose,oJ.,ohadoobservedothatoSectiono106oofothe EvidenceoActoisodesignedotoomeetocertainoexceptional casesoinowhichoitowouldobeoimpossibleoforotheoprosecution tooestablishocertainofactsowhichoareoparticularlyowithin theoknowledgeoofotheoaccused.oInoShambhuoNathoMehraov. TheoStateoofoAjmero[AIRo1956oSCo404o:o1956oCrioLJo794] theolearnedoJudgeohasostatedotheolegaloprincipleothuso: `11.oThisolaysodownotheogeneraloruleothatoinoaocriminal caseotheoburdenoofoproofoisoonotheoprosecutionoand Sectiono106oisocertainlyonotointendedotoorelieveoitoofothat duty.oOnotheocontrary,oitoisodesignedotoomeetocertain exceptionalocasesoinowhichoitowouldobeoimpossible,ooroat anyorateodisproportionatelyodifficult,oforotheoprosecution to o establish o facts o which o are o "especially" o within o the knowledgeoofotheoaccusedoandowhichoheocouldoprove withoutodifficultyooroinconvenience. Theowordo"especially"ostressesothat.oItomeansofactsothat are o pre-eminently o or o exceptionally o within o his knowledge."" (Emphasisosupplied)

40.oInoTrimukhoMarotioKirkanov.oStateoofoMaharashtra,o(2006) 10oSCCo681,othisoCourtowasoconsideringoaosimilarocaseoof homicidalodeathoinotheoconfinesoofotheohouse.oTheofollowing o"ser ationsomadeothereinoareoconsideredorele antoinotheofacts ofotheopresentocaseC "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)] 3 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."

¶15Where 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. 2025.02.11 01:44 The inmates of the house cannot get away by simply keeping o quiet o and o offering o no o explanation o on o the supposedopremiseothatotheoburdenotooestablishoitsocaseolies entirelyouponotheoprosecutionoandothereoisonoodutyoatoall onoanoaccusedotooofferoanyoexplanation. xxxoxxxoxxx

22.oWhereoanoaccusedoisoallegedotoohaveocommittedothe murderoofohisowifeoandotheoprosecutionosucceedsoin leading o evidence o to o show o that o shortly o before o the commissionoofocrimeotheyowereoseenotogetheroorothe offenceotakesoplaceoinotheodwellingohomeowhereothe husbandoalsoonormallyoresided,oitohasobeenoconsistently heldothatoifotheoaccusedodoesonotoofferoanyoexplanation howotheowifeoreceivedoinjuriesoorooffersoanoexplanation whichoisofoundotoobeofalse,oitoisoaostrongocircumstance whichoindicatesothatoheoisoresponsibleoforocommissionoof theocrime.o..." (Emphasisosupplied)

41.oTheoquestionoofoburdenoofoproof,owhereosomeofactsoare withinotheopersonaloknowledgeoofotheoaccused,owasoexaminedoby thisoCourtoinotheocaseoofoStateoofoW.B.ov.oMiroMohammadoOmar andoOrs.,o(2000)o8oSCCo382.oInothisocase,otheoassailantsoforcibly draggedotheodeceasedofromotheohouseowhereoheowasotaking shelteroonoaccountoofotheofearoofotheoaccused,oandotookohim awayoatoabouto2:30oinotheonight.oTheonextodayoinotheomorning, hisomangledobodyowasofoundolyingoinotheohospital.oTheotrial courtoconvictedotheoaccusedounderoSectiono364,oreadowith Sectiono34oofotheoIPC,oandosentencedothemotootenoyearsorigorous imprisonment.oTheoaccusedopreferredoanoappealoagainstotheir convictionobeforeotheoHighoCourtoandotheoStateoalsoofiledoan appealochallengingotheoacquittaloofotheoaccusedoforotheocharge ofomurder.oTheoaccusedohadonotogivenoanyoexplanationoasoto whatohappenedotootheodeceasedoafteroheowasoabductedobyothem. TheoSessionsoJudge,oafteroreferringotootheolawoonocircumstantial I attest to the accuracy and evidence,ohadoobservedothatothereowasoaomissingolinkoinothe chainoofoe idenceoafterotheodeceasedowasolastoseenotogetherowith theoaccusedopersons,oandotheodisco eryoofotheodeado"odyoinothe hospital,oandoconcludedothatotheoprosecutionohadofailedoto esta"lishotheochargeoofomurderoagainstotheoaccusedopersons "eyondoanyoreasona"leodou"t!oThisoCourtotookonoteoofothe pro isionsoofo$ectiono1.6oofotheo* idenceo(ct,oandolaidodown theofollowingoprinciplesoinoparaso31otoo3:C "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 recognized 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 beneficiaries and the society would be the casualty.

¶32In this case, when the prosecution succeeded in establishing the afore3narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognized by the law for the court to rely on in conditions such as this.

¶33Presumption 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.

¶34When it is proved to the satisfaction of the Court that 2025.02.11 01:44 Mahesh was abducted by the accused and they took him outoofothatoarea,otheoaccusedoaloneoknewowhatohappened toohimountiloheowasowithothem.oIfoheowasofoundomurdered withinoaoshortotimeoafterotheoabductionotheopermitted reasoningoprocessowouldoenableotheoCourtotoodrawothe presumptionothatotheoaccusedohaveomurderedohim.oSuch inferenceocanobeodisruptedoifotheoaccusedowouldotellothe CourtowhatoelseohappenedotooMaheshoatoleastountiloheowas inotheirocustody." (Emphasisosupplied)

¶42o Applying o the o aforesaid o principles, o this o Court o while maintainingotheoconvictionounderoSectiono364oreadowithoSection 34oofotheoIPC,oreversedotheoorderoofoacquittalounderoSectiono302 readowithoSectiono34oofotheoIPC,oandoconvictedotheoaccused underotheosaidoprovisionoandosentencedothemotooimprisonment forolife.

43.oThus,ofromotheoaforesaidodecisionsoofothisoCourt,oitoisoevident thatotheocourtoshouldoapplyoSectiono106oofotheoEvidenceoActoin criminalocasesowithocareoandocaution.oItocannotobeosaidothatoit hasonooapplicationotoocriminalocases.oTheoordinaryoruleowhich appliesotoocriminalotrialsoinothisocountryothatotheoonusoliesoon theoprosecutionotooproveotheoguiltoofotheoaccusedoisonotoinoany wayomodifiedobyotheoprovisionsocontainedoinoSectiono106oofothe EvidenceoAct.

44.oSectiono106oofotheoEvidenceoActocannotobeoinvokedotoomake upotheoinabilityoofotheoprosecutionotooproduceoevidenceoof circumstancesopointingotootheoguiltoofotheoaccused.oThisosection cannotobeousedotoosupportoaoconvictionounlessotheoprosecution hasodischargedotheoonusobyoprovingoallotheoelementsonecessary tooestablishotheooffence.oItodoesonotoabsolveotheoprosecution fromotheodutyoofoprovingothatoaocrimeowasocommittedoeven thoughoitoisoaomatterospecificallyowithinotheoknowledgeoofotheSUKHPREET KAUR accusedoandoitodoesonotothrowotheoburdenoonotheoaccusedoto showothatonoocrimeowasocommitted.oTooinferotheoguiltoofothe accusedofromoabsenceooforeasonableoexplanationoinoaocase whereotheootherocircumstancesoareonotobyothemselvesoenoughoto calloforohisoexplanationoisotoorelieveotheoprosecutionoofoits legitimateoburden.oSo,ountiloaoprimaofacieocaseoisoestablishedoby suchoevidence,otheoonusodoesonotoshiftotootheoaccused.

45.oSectiono106oofotheoEvidenceoActoobviouslyorefersotoocases whereotheoguiltoofotheoaccusedoisoestablishedoonotheoevidence producedobyotheoprosecutionounlessotheoaccusedoisoableotooprove someootherofactsoespeciallyowithinohisoknowledge,owhichowould renderotheoevidenceoofotheoprosecutiononugatory.oIfoinosuchoa situation,otheoaccusedooffersoanoexplanationowhichomayobe reasonablyotrueoinotheoprovedocircumstances,otheoaccusedogets theobenefitooforeasonableodoubtothoughoheomayonotobeoableoto proveobeyondoreasonableodoubtotheotruthoofotheoexplanation. But,oifotheoaccusedoinosuchoaocaseodoesonotogiveoanyoexplanation atoalloorogivesoaofalseoorounacceptableoexplanation,othisobyoitself isoaocircumstanceowhichomayowelloturnotheoscaleoagainstohim.oIn theolanguageoofoProf.oGlanvilleoWilliams: "Allothatotheoshiftingoofotheoevidentialoburdenodoesoatothe finalostageoofotheocaseoisotooallowotheojuryo(Court)otootake intooaccountotheosilenceoofotheoaccusedoorotheoabsenceoof satisfactoryoexplanationoappearingofromohisoevidence." (Emphasisosupplied)

46.oToorecapitulateotheoforegoingo:oWhatoliesoatotheobottomoofothe various o rules o shifting o theo evidential o burden o or o burden o of introducingoevidenceoinoproofoofoone'socaseoasoopposedotoothe persuasiveoburdenooroburdenoofoproof,oi.e.,oofoprovingoallothe 2025.02.11 01:44 issuesoremainingowithotheoprosecutionoandowhichoneveroshiftois theoideaothatoitoisoimpossibleoforotheoprosecutionotoogiveowholly convincingoevidenceoonocertainoissuesofromoitsoownohandoandoit is,otherefore,oforotheoaccusedotoogiveoevidenceoonothemoifohe wishesotooescape.oPositiveofactsomustoalwaysobeoprovedobyothe prosecution.oButotheosameoruleocannotoalwaysoapplyotoonegative facts.oItoisonotoforotheoprosecutionotooanticipateoandoeliminateoall possibleodefencesoorocircumstancesowhichomayoexonerateoan accused.oAgain,owhenoaopersonodoesonotoactowithosomeointention otherothanothatowhichotheocharacteroandocircumstancesoofothe actosuggest,oitoisonotoforotheoprosecutionotooeliminateoallothe other o possible o intentions. o If o the o accused o had o a o different intentionothatoisoaofactoespeciallyowithinohisoknowledgeoand whichoheomustoproveo(seeoProfessoroGlanvilleoWilliams-Proofoof Guilt,oCh.o7,opageo127oandofollowing)oandotheointeresting discussion-para o 527 o negative o averments o and o para o 528 o - "requireoaffirmativeocounter-evidence"oatopageo438oandofoil,oof Kenny'sooutlinesoofoCriminaloLaw,o17thoEdn.o1958.

47.oButoSectiono106oofotheoEvidenceoActohasonooapplicationoto casesowhereotheofactoinoquestion,ohavingoregardotooitsonature,ois suchoasotoobeocapableoofobeingoknownonotoonlyotootheoaccused butoalsootooothers,oifotheyohappenedotoobeopresentowhenoitotook place.oTheointentionounderlyingotheoactooroconductoofoany individual o is o seldom o a o matter o which o can o be o conclusively established;oitoisoindeedoonlyoknownotootheopersonoinowhose mindotheointentionoisoconceived.oTherefore,oifotheoprosecution hasoestablishedothatotheocharacteroandocircumstanceoofoanoact suggestothatoitowasodoneowithoaoparticularointention,othenounder illustrationo(a)otoothisosection,oitomayobeoassumedothatoheohad thatointention,ounlessoheoprovesotheocontrary.

48.oAomanifestodistinctionoexistsobetweenotheoburdenoofoproof andotheoburdenoofogoingoforwardowithotheoevidence.oGenerally, theoburdenoofoproofouponoanyoaffirmativeopropositiononecessary toobeoestablishedoasotheofoundationoofoanoissueodoesonotoshift, butotheoburdenoofoevidenceoorotheoburdenoofoexplanationomay shiftofromooneosideotootheootheroaccordingotootheotestimony. Thus,oifotheoprosecutionohasoofferedoevidence,owhichoifobelieved byotheocourt,owouldoconvinceothemoofotheoaccused'soguiltobeyond aoreasonableodoubt,otheoaccused,oifoinoaoposition,oshouldogo forwardowithocounter-vailingoevidence,oifoheohasosuchoevidence. Whenofactsoareopeculiarlyowithinotheoknowledgeoofotheoaccused, theoburdenoisoonohimotoopresentoevidenceoofosuchofacts,owhether theopropositionoisoanoaffirmativeooronegativeoone.oHeoisonot requiredotoodoosooevenothoughoaoprimaofacieocaseohasobeen established,oforotheocourtomustostillofindothatoheoisoguiltyobeyond a o reasonable o doubt o before o it o can o convict. o However, o the accused'sofailureotoopresentoevidenceoonohisobehalfomayobe regardedobyotheocourtoasoconfirmingotheoconclusionoindicatedoby theoevidenceopresentedobyotheoprosecutionooroasoconfirming presumptionsowhichomightoariseotherefrom.oAlthoughonotolegally requiredotooproduceoevidenceoonohisoownobehalf,otheoaccused may,otherefore,oasoaopracticalomatterofindoitoessentialotoogo forwardowithoproof.oThisodoesonotoalterotheoburdenoofoproof restingouponotheoprosecutiono[See:oBalviroSinghov.oStateoof Uttarakhand,o2023oSCCoOnLineo1261] ii.oWhatoiso"primaofacieocase"o(foundationalofacts)oinotheocontext ofoSectiono106oofotheoEvidenceoAct?

49.oTheoLatinoexpressionoprimaofacieomeanso"atofirstosight",o"at 2025.02.11 01:44 first o view", o or o "based o on o first o impression". oAccording o to Webster'soThirdoInternationaloDictionaryo(1961oEdn.),o"prima facieocase"omeansoaocaseoestablishedobyo"primaofacieoevidence" whichoinoturnomeanso"evidenceosufficientoinolawotooraiseoa presumptionoofofactooroestablishotheofactoinoquestionounless rebutted".oInobothociviloandocriminalolaw,otheotermoisousedoto denote o that, o upon o initial o examination, o a o legal o claim o has sufficientoevidenceotooproceedotootrialoorojudgment.oInomostolegal proceedings, o one o party o (typically, o the o plaintiff o or o the prosecutor)ohasoaoburdenoofoproof,owhichorequiresothemoto presentoprimaofacieoevidenceoforoeachoelementoofotheocaseoor chargesoagainstotheodefendant.oIfotheyocannotopresentoprima facieoevidence,otheoinitialoclaimomayobeodismissedowithoutoany needoforoaoresponseobyootheroparties.

50.oSectiono106oofotheoEvidenceoActowouldoapplyotoocasesowhere theoprosecutionocouldobeosaidotoohaveosucceededoinoproving facts o from o which o a o reasonable o inference o can o be o drawn regardingoguiltoofotheoaccused.

51.oTheopresumptionoofofactoisoanoinferenceoasotootheoexistenceoof oneofactofromotheoexistenceoofosomeootherofacts,ounlessotheotruth ofosuchoinferenceoisodisproved.

52.oTooexplainowhatoconstitutesoaoprimaofacieocaseotoomake Sectiono106oofotheoEvidenceoActoapplicable,oweoshouldoreferoto theodecisionoofothisoCourtoinoMiroMohammado(supra),owherein thisoCourtohasoobservedoinoparaso36oando37orespectivelyoas under: "36.oInothisocontextoweomayoprofitablyoutilizeotheolegal principleoembodiedoinoSectiono106oofotheoEvidenceoAct whichoreadsoasofollows:o"Whenoanyofactoisoespecially withinotheoknowledgeoofoanyoperson,otheoburdenoof 2025.02.11 01:44 provingothatofactoisouponohim."

¶37The 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." 4*mphasisosupplied) +3!o>eoshouldoalsoolookointootheodecisionoofothisoCourtoinothe caseoofoRamoBulamoChaudharyoDo#rs!o !o$tateoofo3ihar,o42..1) ,o$CCo311,owhereinothisoCourtomadeotheofollowingoo"ser ations inoparagrapho2:oasounderC "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 chhura3blow was given on the chest. Thus chhura3blow 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. 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 SUKHPREET KAUR by virtue of their special knowledge must offer an I attest to the accuracy and explanation which might lead the Court to draw a differentoinference.oWe,otherefore,oseeonoosubstanceoinothis submissionoofoMr.oMishra." (Emphasisosupplied)

54.oCasesoareofrequentlyocomingobeforeotheocourtsowhereothe husband,odueotoostrainedomaritalorelationsoandodoubtoasoregards theocharacter,ohasogoneotootheoextentoofokillingohisowife.oThese crimesoareogenerallyocommittedoinocompleteosecrecyoinsideothe houseoandoitobecomesoveryodifficultoforotheoprosecutionotoolead evidence.oNoomemberoofotheofamily,olikeoinotheocaseoatohand, evenoifoheoisoaowitnessoofotheocrime,owouldocomeoforwardoto deposeoagainstoanotherofamilyomember.

55.oIfoanooffenceotakesoplaceoinsideotheofourowallsoofoaohouse andoinosuchocircumstancesowhereotheoaccusedohasoallothe opportunityotooplanoandocommitotheooffenceoatoaotimeoandoinothe circumstancesoofohisochoice,oitowillobeoextremelyodifficultoforothe prosecutionotooleadodirectoevidenceotooestablishotheoguiltoofothe accused.oItoisotooresolveosuchoaosituationothatoSectiono106oofothe EvidenceoActoexistsoinotheostatuteobook.oInotheocaseoofoTrimukh MarotioKirkano(supra),othisoCourtoobservedothatoaoJudgeodoes notopresideooveroaocriminalotrialomerelyotooseeothatonooinnocent manoisopunished.oTheoCourtoproceededotooobserveothatoaoJudge alsoopresidesotooseeothatoaoguiltyomanodoesonotoescape.oBothoare publicoduties.oTheolawodoesonotoenjoinoaodutyoonotheoprosecution tooleadoevidenceoofosuchocharacter,owhichoisoalmostoimpossible toobeoled,ooroatoanyorate,oextremelyodifficultotoobeoled.oTheoduty onotheoprosecutionoisotooleadosuchoevidence,owhichoitoisocapable ofoleading,ohavingoregardotootheofactsoandocircumstancesoofothe

56.oWeoareoofotheoviewothatotheofollowingofoundationalofacts, whichowereodulyoproved,ojustifiedotheocourtsobelowoinoinvoking theoprinciplesoenshrinedounderoSectiono106oofotheoEvidenceoAct: a)oTheooffenceotookoplaceoinsideotheofourowallsoofothe houseoinowhichotheoappellant,odeceasedoandotheiro5-year-oldodaughterowereoliving.oTheoincidentooccurredoinothe earlyomorningohoursobetweeno3.30oamoando4.00oam. b)oWhenotheoInvestigatingoOfficeroreachedotheohouseoof theoappellant,oheofoundotheodeceasedolyingoinoaopooloof blood.oTheoappellantowasoalsoopresentoatohisohouse. c)oTheodefenceoputoforwardobyotheoappellantothatotwo unidentified o persons o entered o the o house o and o inflicted injuriesoonotheodeceasedoandoalsooonohisobodyoisofoundoto beofalse. d)oTheoclothesowornobyotheoappellantoatotheotimeoofothe incidentowereocollectedobyotheoInvestigatingoOfficer.oThe clothesohadobloodostains.oAccordingotootheoForensic Science o Laboratory o report, o the o blood o stains o on o the clothesoofotheoappellantomatchedowithotheobloodogroupoof theodeceasedoi.e.,oAB+ e) o The o conduct o of o the o appellant o in o leading o the InvestigatingoOfficeroandoothersotooaodrainonearbyohis houseoandotheodiscoveryoofotheoknifeofromotheodrainoisoa relevantofactounderoSectiono8oofotheoEvidenceoAct.oIn otherowords,otheoevidenceoofotheocircumstanceosimpliciter thatotheoappellantopointedooutotootheoInvestigatingoOfficer theoplaceowhereoheothrewoawayotheoweaponoofooffenceoi.e., knifeowouldobeoadmissibleoaso`conduct'ounderoSectiono8 irrespectiveoofotheofactowhetherotheostatementomadeobyothe accusedocontemporaneouslyowithooroantecedentotoosuch conductofallsowithinotheopurviewoofoSectiono27oofothe EvidenceoAct.

¶32In o the o instant o case, o certain o foundational o facts o have o been establishedobeyondodoubt.oFirstly,otheooccurrenceohasotakenoplaceoinsideothe fourowallsoofotheohouseoinowhichotheodeceased-SohanoSingh,otheoaccused-I attest to the accuracy andKulwantoKauroandotheirothreeominorochildrenowereoresidents.ooSecondly,othe nylon rope andochunni used in the occurrence were recovered from the same house. Thirdly, the defence put forth by the accused3Kulwant Kaur in her statement under Section 313 Cr.P.C. is totally incorrect in view of the evidence led and the finding recorded by us that the occurrence had indeed taken place in quarter No.2233 of which all were residents. Therefore, it was incumbent upon the accused3appellant No.1/Kulwant Kaur to have explained how the deceased had died an unnatural homicidal death in the house. She has been unable to offer a plausible explanation and therefore, an adverse inference is to be drawn against her.

¶33In view of the aforementioned discussion, we find that as PW3 7/Sucha Singh3complainant and PW38/Manpreet Kaur are both witnesses whose testimonies cannot be believed, there is absolutely no evidence inculpating accused3appellants No.2 and 3, namely, Gurdev Singh @ Mangi and Nathu Ram @ Laddi. However, as regards accused3appellant No.1/Kulwant Kaur, she being the wife of the deceased and a resident of the same house where Sohan Singh died a homicidal death was required to explain his unnatural death which she has been unable to do.

¶34Therefore, we accept the appeal qua accused3appellants No.2 and 3, namely, Gurdev Singh @ Mangi and Nathu Ram @ Laddi and they are acquitted of the charges framed against them. However, we dismiss the appeal qua accused3appellant No.1/Kulwant Kaur. She is directed to surrender before the Jail Authorities concerned forthwith to serve out her remaining sentence.

¶35The present appeal is disposed of in the above terms alongwith the application pending, if any. (oGUR1INDERo0INGHoGI//) JUDGE (oJA0JITo0INGHoBEDI) 11'02'2025 o ooo JUDGE