Judgment:
Arun Mishra, J.
1. The appeal has been preferred by the accused/appellant aggrieved by judgment dated 3-10-2000 delivered by IVth Addl. Sessions Judge, Rewa, in S.T. No. 153/99 thereby convicting the appellant for commission of offence under Section 302, IPC for committing murder of his wife Leelawati and daughter Santosh Kumari.
2. The prosecution case in short is that accused was having evil eye on his daughter and wanted to commit forcible sexual intercourse with her which used to be objected by his wife and daughter. He was also having evil eye towards another daughter Mamta. Report was lodged on 8-7-99 by Ramnaresh son of accused. He was informed by Neelesh Kumar that his mother and sister were lying dead in the house, when he enquired about his father from his brother Laxminarayan, he informed that father had taken the bicycle and had gone towards the eastern direction. For the last 2-3 days dispute was taking place in the family. Merg intimation was registered at Nos. 12/99 and 13/99. Investigation was done. It was found during investigation that the accused used to mete out cruel treatment to the daughter in order to commit forcible sexual intercourse with her and used to harass his wife as well as daughter. As daughter did not succumb to the lust of the accused, prior to four days of the incident, the food, etc. was locked by him in a room. Initially the police registered the case under Section 306, IPC. The Trial Court framed the charge under Section 306 and in alternative under Section 302 of IPC.
3. Accused abjured the guilt and contended that he has been falsely implicated as his sons Laxminarayan and Ramnaresh wanted to usurp the land and the house. Santosh Kumari was having illicit relationship with Neelesh Verma, marriage of Santosh Kumari was settled and was likely to be broken, consequently, the mother and daughter have committed suicide on being objected to by the accused.
4. The prosecution has examined in all eight witnesses. The Trial Court has convicted the appellant for committing murder of his wife and daughter. Aggrieved thereby, the appeal has been preferred.
5. Shri Aseem Dixit, learned Counsel appearing for appellant has submitted that evidence is not sufficient so as to record the conviction under Section 302, IPC, police has also not found the case under Section 302, IPC. The suicide was committed by the wife and daughter of the accused. It could not be said, in the facts and circumstances of the case, that there was abetment of suicide by the appellant, thus, he deserves to be acquitted.
6. Ms. C. Sharma, learned Govt. Advocate has supported the judgment.
7. In the instant case, it is not disputed that at the time when wife of the appellant as well as daughter died, the appellant was there in their company. Appellant has also sustained superficial burn injuries as proved by Dr. S.K. Shrivastava (P.W. 7). There were four superficial burn injuries. In the circumstances as accused was in the company of the deceased persons and admittedly they were residing together, it was incumbent upon the accused to have explained the facts which were in his exclusive knowledge as provided under Section 106 of Evidence Act. The prosecution by the evidence has not only established the presence of the accused in the company of deceased persons, in the instant case but the evidence also discloses the immediate conduct of the accused which unerringly points out that it was not a case of commission of suicide by deceased persons, but accused has committed murder of them. We find on record statement of son of accused, namely, Laxminarayan (P.W. 6). He has stated that he was in the village, when he reached the house, he found that smoke was coming out, he parked his bicycle outside the house and from back side he entered the house and found that his sister and mother were in the flames, his father was standing in the courtyard, he asked his father how they caught fire, on that accused took his bicycle and ran away without uttering even a word. His father was wearing underwear. Hue and cry was raised by the witness, on that villagers assembled, by that time his sister and mother had already died. He has further stated in Para 2 of his deposition that conduct of his father was not good. He used to attempt forcible sexual intercourse with his daughter Santosh Kumari on number of times and on being objected, used to beat her. Mother also used to resist the accused, on that mother also used to be beaten by the accused. On the prior Saturday his father wanted to commit forcible sexual intercourse with his sister, on being objected a quarrel took place in the house, he went away on Sunday and came back in the evening. His father had locked the estables in a room. When he asked his father not to do so, his father told they should earn and eat. Not only this, we find that the extra judicial confession was also made by the accused immediately after the incident to his daughter-in-law, namely, Rannu Sondhiya (P.W. 3). She has stated that when she was in her parental house, her father-in-law came on the bicycle and stated that he had set ablaze Santosh Kumari and her mother. Later on in her cross-examination, after about eight months, she tried to change this version and submitted that it was informed that deceased persons had committed suicide, but her earlier version appears to be correct and later version made after eight months appears to be after she was won over. She has also stated that conduct of her father-in-law was not good, he used to harass deceased Santosh Kumari, which used to be objected by her mother-in-law. Accused was also not keeping good eye on her. However, she used to go out whenever the accused started filthy talks.
Yet another daughter Mamta Devi (P.W. 2) of the accused has alsostated that her father used to keep evil eye on her also and wanted to make sexual relationship with her. Santosh Kumari had also complained about the similar conduct of the accused, this conduct of the accused used to be objected to by Lilawati, deceased, but accused never listened to daughter and mother and used to beat them. Either the deceased persons have committed suicide or accused has committed their murder, obviously, as she was not in the house, she could not have stated aforesaid fact precisely. The conduct of accused indicates that he did not go to the police station to lodge the report nor tried to save the deceased persons. He did not raise hue and cry also to call the neighbours in case it was a case of commission of suicide, on the contrary he failed to answer the query made by his son Laxminarayan as to how deceased person were set ablaze. He silently moved away taking the bicycle and reached to the house of daughter-in-law and had made extrajudicial confession to her. Superficial burn injuries found on the person of accused establishes his complicity and present. It was clearly a case of commission of murder by accused, his conduct indicates that.
8. Ramnaresh Sondhiya (P.W. 4), yet another son of the accused, was not in the house and was residing separately, he has also stated about the ill deeds of his father and further stated that conduct of the family members was not proper. Mamta Devi had informed him that father used to sexually harass her. The witness has also stated in Para 9 that on being asked about the whereabouts of the accused, his brother had informed that he had run away. Thus, conduct of the accused of running away from the spot silently cast a serious doubt as to his conduct, it was incumbent upon him to immediately explain in case it was a case of suicidal burn injuries, but he has not done so. He has not even disclosed this fact to his son. The injuries caused have been proved by Dr. S.K. Shrivastava (P.W. 7). He has performed the autopsy of Lilawati and found burn injuries to the extent of 100%, Santosh Kumari's autopsy was also performed and 100% burn injuries were found. Post-mortem reports (P-7 & P-8) have been proved. Investigation has been proved by R.K. Shukla. This Court has considered various decisions of Apex Court in Cr. A. No. 86/99, decided on 11-9-2007 laying down that it is the bounden duty of the accused to explain the conduct. In case no explanation is offered or the explanation offered is found to be false, that provides additional link in the chain of circumstances so as to fasten the guilt of the accused thus:
The Apex Court in State of U.P. v. Dr. Ravindra Prakash Mitlal : (1992) 3 SCC 300, has laid down in the backdrop of the fact that death of wife took place in the house, circumstances required explanation from the husband. In the instant case husband was in the company of wife, thus it was necessary for him to explain the circumstances how homicidal death took place, it was not the case of death by drowning. In ShriKishan v. State of Haryana AIR 1994 SC 1597, the Apex Court has laid down in the backdrop of the fact that accused was present in the house on the fateful night, medical evidence assumes importance in the case to ascertain cause of death. Medical evidence indicated that death was due to asphyxia as a result of strangulation around the neck. It was not the case of accused that he hrought down the dead body and placed it on the cot, the Apex Court held, which corroborated the prosecution version that the death was due to strangulation and accused was responsible for that. In Sheikh Abdul Hamid and Anr. v. State of Madhya Pradesh : AIR 1998 SC 942, it was considered whether there was possibility of an outsider to have committed the offence, there was no such possibility found as such accused was convicted. In Trimukh Maroti Kirkan v. Stale of Maharashtra : JT 2006 (9) SC 50, the Apex Court has considered that when an offence takes place inside the privacy of a house, in the instant case husband and wife were in the company, it is held that 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 is insisted upon by the Courts. 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. 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. It has been further observed that where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
In view of the aforesaid principles of law laid down by the Apex Court and facts projected in the instant case, it is apparent that appellant has been rightly found guilty of offence under Section 302 of IPC and sentence imposed upon him is also found to be proper. No case for interference in the appeal is made out.
9. Resultantly, appeal is hereby dismissed. Conviction and sentence imposed on the accused/appellant is hereby affirmed.