Burden of proof (section 106 Evidence Act) and explaining circumstance and (section 313 Cr.P.C)

ANALYSIS

1. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the High Court committed any error in passing the impugned judgment and order.

APEX COURT RULED OUT SUICIDE

1. We take note of the following circumstances emerging from the facts on record:

POISON WAS THROUGH HER MEDICINE RULED OUT

a. The cause of death is due to poisoning. The poison detected in the viscera was aluminium phosphide. Aluminium phosphide is used as a fumigant to control the insects and rodents in the foodgrains and fields. It is too much for the convicts to say that the presence of aluminium phosphide in the viscera could be due to the medicines which the deceased used to take for her heart ailment. Such medicines even in high dosage would not lead to formation of aluminium phosphide in the body. This theory which has been put forward could be termed as something very absurd. No particular question in this direction has been put to the expert witness (doctor) while he was in the witness box. In such circumstances, the only inference that can be drawn is that aluminium phosphide either in the liquid form or in the form of tablets was procured by the accused husband and the same was administered to the deceased.
b. We completely rule out the theory of suicide as sought to be put forward on behalf of the appellants.

ACCUSED FAILED TO PROVE HE TOOK THE DECEASED TO THE HOSPITAL

c. If it is the case of the convict-husband that he had taken the deceased to the Sanjay Gandhi Hospital at Delhi then he should have led some evidence to indicate how she was taken to the hospital, in what type of vehicle and who attended the deceased at the hospital? In the case of the present type, it is very difficult to believe that if the deceased had been taken to the hospital and declared dead on arrival, the hospital authorities would allow the convict/husband to carry the dead body of his wife back home. It would become a medico-legal case and the hospital would definitely inform the police.

CONDUCT OF ACCUSED NOT INFORMING THE DECEASED’S FAMILY MEMBER

d. The dubious conduct of the convict-husband of not informing the family members about the death of their daughter. Though in his further statement, the convict-husband has said that he had informed the family members of the deceased yet the evidence of PW3 Harender Singh (uncle of the deceased) is otherwise.

PRINCIPLES OF LAW GOVERNING THE APPLICABILITY OF SECTION 106 OF THE EVIDENCE ACT

1. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word “especially” means facts that are pre-eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are, “especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience”.

Apex court placed reliance on the following judgments:

Shambhu Nath Mehra v. The State of Ajmer reported in AIR 1956 SC 404,
The aforesaid decision of Shambhu Nath (supra) has been referred to and relied upon in Nagendra Sah v. State of Bihar reported in (2021) 10 SCC 725 
Tulshiram Sahadu Suryawanshi and Another v. State of Maharashtra reported in (2012) 10 SCC 373
Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681

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1. The question of burden of proof, where some facts are within the personal knowledge of the accused, was examined by this Court in the case of State of W.B. v. Mir Mohammad Omar and Others reported in (2000) 8 SCC 382. In this case, the assailants forcibly dragged the deceased from the house where he was taking shelter on account of the fear of the accused, and took him away at about 2:30 in the night. The next day in the morning, his mangled body was found lying in the hospital. The trial court convicted the accused under Section 364, read with Section 34 of the IPC, and sentenced them to ten years rigorous imprisonment. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for the charge of murder. The accused had not given any explanation as to what happened to the deceased after he was abducted by them. The Sessions Judge, after referring to the law on circumstantial evidence, had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons, and the discovery of the dead body in the hospital, and concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt.

2. Applying the aforesaid principles, this Court while maintaining the conviction under Section 364 read with Section 34 of the IPC, reversed the order of acquittal under Section 302 read with Section 34 of the IPC, and convicted the accused under the said provision and sentenced them to imprisonment for life.

3. Thus, from the aforesaid decisions of this Court, it is evident that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106 of the Evidence Act.

SECTION 106 EVIDENCE ACT – STILL THE ONUS OF BURDEN OF PROVING ALL THE ELEMENTS TO ESTALISH THE OFFENCE IS ON PROSECUTION

1. Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden of the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused.

2. Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory. If in such a situation, the accused gives an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams:

“All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence.”

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WHEN SECTION 106 EVIDENCE ACT HAS NO APPLICATION? – EXPLAINED

1. But Section 106 has no application to cases where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happened to be present when it took place. From the illustrations appended to the section, it is clear that an intention not apparent from the character and circumstances of the act must be established as especially within the knowledge of the person whose act is in question and the fact that a person found travelling without a ticket was possessed of a ticket at a stage prior in point of time to his being found without one, must be especially within the knowledge of the traveller himself : see Section 106 of the Indian Evidence Act, illustrations (a) and (b).

2. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence which if believed by the court would convince them of the accused’s guilt beyond a reasonable doubt, the accused is in a position where he should go forward with counter-vailing evidence if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused’s failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might have been rebutted. Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution (Wharton’s Criminal Evidence, 12th Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Leland v. State reported in 343 U.S. 790=96 L.Ed. 1302, Raffel v. U.S. reported in 271 U.S. 294=70 L.Ed. 1054.

WHAT IS “PRIMA FACIE CASE” IN THE CONTEXT OF SECTION 106 OF THE EVIDENCE ACT?

1. The Latin expression prima facie means “at first sight”, “at first view”, or “based on first impression”. According, to Webster’s Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “evi-Ideuce sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the charges against the defendant. If they cannot present prima facie evidence, or if an opposing party introduces contradictory evidence, the initial claim may be dismissed without any need for a response by other parties.

2. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding death.

3. The presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved.

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1. In the case on hand it has been established or rather proved to the satisfaction of the court that the deceased was in company of her husband i.e., the appellant-convict at a point of time when something went wrong with her health and therefore, in such circumstances the appellant-convict alone knew what happened to her until she was with him.

FAILURE ON THE PART OF THE APPELLANT-CONVICT IN OFFERING ANY PLAUSIBLE EXPLANATION IN HIS FURTHER STATEMENT RECORDED UNDER SECTION 313 OF THE Cr.P.C

ACCUSED DID NOT EXPLAIN IN WHAT CIRCUMSTANCES AND IN WHAT MANNER HE HAD TAKEN THE DECEASED TO THE HOSPITAL AND WHO ATTENDED DECEASED AT THE HOSPITAL

1. We take notice of the fact that the appellant-convict (husband) has not explained in any manner as to what had actually happened to his wife more particularly when it is not in dispute that the appellant-convict was in company of his wife i.e., deceased. It is important to bear in mind that the deceased died on account of poisoning. The poison which was detected in the viscera was found to be “aluminium phosphide”. Although, the appellant-convict tried to project a picture that no sooner the deceased fell sick than he immediately took her to the Sanjay Gandhi Hospital at Delhi, yet, there is no evidence worth the name in this regard. The appellant-convict was expected to lead some evidence as to what had transpired at the Sanjay Gandhi Hospital. He has maintained a complete silence. It is only the appellant-convict who could have explained in what circumstances and in what manner he had taken his wife to the Sanjay Gandhi Hospital and who attended his wife at the hospital. If it is his case, that his wife was declared dead on being brought at the hospital then it is difficult to believe that the hospital authorities allowed the appellant to carry the dead body back home without completing the legal formalities.

SECTION 313 Cr.P.C – CIRCUMSTANCE NOT EXPLAINED BY THE ACCUSED

1. In the aforesaid context, we must look into the decision of this Court in the case of Deonandan Mishra v. The State of Bihar reported in AIR 1955 SC 801. In the said decision, there is a very important passage in which, the learned Judges deal with the effect of failure of the accused to offer any explanation for circumstances appearing in evidence against him in a prosecution based upon circumstantial evidence. At the cost of repetition, the law is very clear that the accused is not bound to offer any explanation, that there is no burden cast upon him to do so and that the onus of proof does not shift in respect of the vital matter of guilt at any stage of a criminal trial. But as stated by this Court:

“It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case where the various links have been satisfactorily made out and the circumstances point to the accused as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which, if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain.” (Emphasis supplied).

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1. In the aforesaid context, we may also refer to and rely on a decision of this Court in Kalu alias Laxminarayan v. State of Madhya Pradesh reported in (2019) 10 SCC 211, wherein this Court after referring to its various other decisions on the applicability of Section 106 of the Evidence Act observed as under:

“16. In view of our conclusion that the prosecution has clearly established a prima facie case, the precedents cited on behalf of the appellant are not considered relevant in the facts of the present case. Once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under Section 313 CrPC with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased.”

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1. We are of the view that the circumstances narrated by us in para 28 of this judgment constitute more than a prima facie case to enable the prosecution to invoke Section 106 of the Evidence Act and shift the burden on the accused husband to explain what had actually happened on the date his wife died.

2. These appeals remind us of what this Court observed in the case of Dharam Das Wadhwani v. State of Uttar Pradesh:

“The rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate inferences flowing from evidence, circumstantial or direct.” The role of courts in such circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities, perfunctory investigation or insignificant lacunas in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. The courts are expected to be sensitive in cases involving crime against women.

PARTY: BALVIR SINGH vs. STATE OF UTTARAKHAND – CRIMINAL APPEAL NO. 301 OF 2015 – October 06, 2023.

https://main.sci.gov.in/supremecourt/2015/353/353_2015_1_1502_47423_Judgement_06-Oct-2023.pdf

Balvir Singh vs. state of Uttarakhand