Aditya Kumar Trivedi, J.(Oral) - Cr. Appeal (S.J.) No.513 of 2015 wherein Raj Kishore Singh is the appellant and Cr. Appeal (S.J.) No.603 of 2015 wherein Arun Kumar Singh and Sharwan Kumar Singh are the appellants commonly originate against the judgment of conviction dated 23.07.2015 and order of sentence dated 27.07.2015 passed by the 4th Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No.202 of 2014, whereby and whereunder all the appellants have been found guilty for an offence punishable under Section 304B/34 of the I.P.C. and each one has been sentenced to undergo R.I. for ten years, under Section 201/34 of the I.P.C. and each one has been undergo R.I. for three years, on account thereof, heard analogously and are being disposed of by a common judgment.

2. PW-7, Jaleshwar Prasad Singh, who happens to be father of the deceased Guria Kumari filed written report on 11.08.2013 disclosing therein that his daughter Guria Kumari aged about 22 years was married with Sanjay Kumar Singh @ Narayan Singh, son of Arun Kumar Singh on 18.05.2013 as per Hindu Rites and Customs and since thereafter, she was staying at her sasural at village-Hemanpura. His son-in-law Sanjay Kumar Singh happens to be employed under S.S.B. and for the present, he is on duty. His son-in-law had joined his duty after spending 45 days of leave. It has also been disclosed that during course of stay, his son-in-law tortured his daughter so many times, which she intimated to him on phone. It has also been averred that father-in-law of Guria Kumari namely Arun Kumar Singh, wife of Arun Kumar Singh, Sharwan Kumar Singh, Raj Kishore Singh, Tunni Devi were regularly torturing her for procurement of dowry, which was being communicated at the end of Guria Devi to him as well as his wife. In the aforesaid background, he had visited sasural of Guria Kumari on 24.06.2013 and requested the members of her sasuralwala not to harass her. At that very moment also, her sasuralwala had demanded four wheeler, but on account of financial crunch, he was not able to satisfy them. On 10.08.2013, Guria telephonically informed that her sasuralwala are severally torturing her for procurement of demand of dowry. She also disclosed that they are also conspiring to commit murder. Today, i.e. on 11.08.2013 at about 6.00 a.m. he received information through Mobile No. 8877525716 that his daughter Guria Kumari has sustained burnt injury and so, you should come to provide treatment. Accordingly, he along with his elder brother Ram Naresh Singh, wife, his bhabhi and others came at Hemanpura and gone to the place of Guria Kumari where they have not found anybody including Guria. When they gone inside the house, courtyard, they have found burnt hair, bed, whereupon they inquired from villagers, who disclosed that Guria Kumari has been done to death by burnt at previous night by pouring kerosene oil upon her and her dead body has been concealed.

3. After registration of Rahui P.S. Case No.192 of 2013, investigation commenced and concluded by way of submission of chargesheet against these appellants/accused persons on account of having been arrested during course of investigation keeping the investigation pending against remaining and that happens to be reason behind commencement, culmination of the trial relating to these appellants only after having the trial bifurcated at the initial stage from rest of the accused.

4. Defence case, as is evident from mode of cross-examination as well as statement recorded under section313of the Cr.P.C., 1973 is that of complete denial. There happens to be specific plea of alibi on behalf of appellant Arun Kumar Singh that he being driver of a Bus was returning from Kolkata to Biharsharif and during course thereof, he received telephonic information regarding the misfortune having been committed at his house and the subsequent eventuality happens to be in light thereof, and for that, two DWs have also been examined.

5. In order to substantiate its case, prosecution had examined altogether ten PWs, who are PW-1 Suresh Prasad Singh, PW-2 Ashok Singh, PW-3 Sanjeet Kumar Kunal, PW-4 Indu Devi, PW-5 Malti Devi, PW-6 Ram Naresh Singh, PW-7 Jaleshwar Prasad Singh, PW-8 Manish Kumar, PW-9 Rama Shankar Ram and PW-10 Dr. Faizal Irshad. Side by side, had also exhibited viz. Exhibit-1 signature of Ram Naresh Singh (PW-6) over written report, Exhibit-2 is the signature of PW-6 Ram Naresh Singh over seizure list, Exhibit-3 happens to be signature of PW-6, Ram Naresh Singh over inquest report, Exhibit-4 is the signature of informant (PW-7) over written report and in likewise manner, Exhibit-2/1 is the signature of informant over seizure list, Exhibit-3/1 signature over inquest report, Exhibit-5 endorsement over written report, Exhibit-6 is paragraph 117 to 167 of the case diary, Exhibit-7 seizure list, Exhibit-8 inquest report and Exhibit-9 medical report. As stated above, defence had also examined two DWs viz. DW-1 Vikas Kumar Sinha and DW-2 Uday Prabhakar. Side by side, had also exhibited Exhibit-A certificate issued by DW-1 and Exhibit-B is the Challan.

6. While challenging the judgment impugned, it has been submitted on behalf of learned counsel for the appellants that on account of persisting infirmities which has completely been overlooked by the learned lower Court, the finding so recorded by the learned lower Court happens to be non-tenable in the eye of law. To substantiate the same, it has been submitted that prosecution case suffers from ambiguity in the background of the fact that right from inception, the allegation with regard to demand of four wheeler as well as torture meted out to the deceased on that very score, suffer from vagueness. Even during course of evidence, the witnesses failed to properly identify the same though introduced with a purpose, to implicate all the family members and further, the conviction and sentence against appellants under the dowry death. Furthermore, it has been submitted that none of the witnesses, save and except PW-7, informant had claimed that there was demand at the end of appellants. So far evidence of PW-7 is concerned, though he had stated that on getting telephonically information at the end of the deceased, he had visited her place, but again he failed to identify, who out of the accused so named, had insisted upon with regard to dowry, more particularly four wheeler and in likewise manner, torture having inflicted on that very score.

7. Furthermore, it has been submitted that under criminal trial the accused is not under obligation to say anything in his defence. It is the prosecution, who in terms of Section 101 of the Evidence Act is under obligation to substantiate its case, in case seeks a verdict in its favour. That being so, prosecution is under compulsion to substantiate its case beyond all reasonable doubt and any doubt coming in between, is found sufficient to overthrow the prosecution version. Had there been demand of dowry by the appellants or any of their family members, then in that event, it was expected at the end of the prosecution to have properly identified that person and would have disclosed putting finger against him to be the culprit. So far present case is concerned, the aforesaid exercise is found completely blurred. That means to say, the prosecution sailed the proceeding on illusion.

8. It has also been submitted that it was under obligation of the prosecution to have substantiated that the dead body so recovered is of deceased Guria Kumari. There happens to be failure at the end of the prosecution in getting the dead body properly identified by means of D.N.A. Test, though the I.O. (PW-9) had enlightened the issue, but without any report.

9. Apart from this, it has also been submitted that prosecution had suppressed the initial version, which as per evidence of PW-6 was recorded by the police officials on a fard-bayan given by the PW-7 over which, he had put his signature. The present prosecution happens to be on the basis of the written report and so, the initial version of the prosecution has purposely, intentionally, malafidely been withheld. Had there been properly exposure at the end of the prosecution, then in that circumstance, the initial prosecution version with regard to commission of the occurrence, coupled with complicity of the accused, would have been properly identified.

10. Furthermore, it has also been submitted that save and except PW-7, none of the PWs have claimed that they have visited the place of sasural of deceased. On the other hand, as has been submitted that there happens to be conclusive prosecution version that deceased had not visited her Maika, so there was no scope available for direct conversation and that happens to be reason behind introduction of conversation through mobile, but the most surprising feature is, neither the mother nor the aunt nay the uncle, brother have disclosed the mobile number of the deceased and in likewise manner, happens to be the conduct of the I.O. (PW-9). In its continuity, it has been submitted that I.O. had deposed with regard to tracing out of C.D.R. of so many I.M.E.I., but failed to disclose the SIM number being used therein as well as also failed to place the C.D.R. of respective mobile containing different I.M.E.I. Had there been, then in that circumstance, there would have been a material to suggest that deceased was carrying a mobile phone with which she had an occasion of conversation with the members of the prosecution, who happens to be her family members, since before alleged occurrence.

11. Apart from this, it has also been submitted that from the Post mortem report coupled with evidence of PW-10, Dr. Faizal Irshad, it is evident that post mortem was conducted on 26.08.2013, on which date, the doctor had opined time elapsed since death within seven days and that is sufficient to indicate that the dead body, which was recovered, was not of Guria Devi as being the case registered on 11.08.2013, which happens to be beyond the aforesaid period of seven days, on which date, Guria Devi was found missing since before. So, the cumulative effect, as argued on behalf of learned counsel for the appellants, did not justify the finding recorded by the learned lower Court, whereupon the same is fit to be set aside.

12. On the other hand, learned Additional Public Prosecutor assisted by the learned counsel for the informant submitted that there happens to be sufficient materials available on the record which justify the finding recorded by the learned lower Court. To substantiate the same, it has been submitted that informant (PW-7) had visited the place of deceased (sasural) even prior to her death on getting telephonic information at her end. In Para-13 of his cross-examination, he had disclosed the mobile number of his daughter (deceased). Furthermore, it has also been submitted that from the evidence of all the PWs, it is apparent that no suggestion has been given to them relating to the victim whether she was present at her sasural or not, what had occurred to her, whether marriage was solemnized or not, whether she on her own fled away and in likewise manner, no cross-examination has been made either to PW-10, the doctor, who conducted post mortem, PW-9, the I.O., PW-7, the informant, father (PW-6), the uncle (a witness over inquest) that dead body was completely decomposed, non-identifiable and that being so, the Court cannot draw adverse inference mere on the submission made on behalf of appellants. When those witnesses were not at all tested on that very score, the ultimate result which the Court is bound to infer is with regard to condition of the dead body to be properly identifiable. When the dead body was duly identified to be that of Guria Kumari, who died few months after marriage and for that, there happens to be consistent prosecution version that there was demand of four wheeler and for that, she was subjected to torture. That being so, the conviction and sentence recorded by the learned lower Court is fit to be confirmed.

13. From the record, it transpires that appellants were being prosecuted for an offence punishable under Section 302/34, 304B/34 and 201/34 of the I.P.C. When the evidence of the respective witnesses have been gone through, right from inception of the case, it is apparent that the demand so made and the torture with regard thereto, suffers from vagueness. None of the witnesses including the father (PW-7) has been able to properly identify the role having been played by each of the accused/appellants during course of demand and its subsequent effect that means to say, the torture or cruelty or harassment to excoriate. They have simply deposed that accused persons (identified through their relationship) have advanced demand of four-wheeler and for that, Guria Kumari was tortured. On the other hand, from the evidence of mother (PW-4) under Para-7, it is apparent that there happens to be admission at her end that the deceased was handicapped, she was graduate. PW-7, the father under Paras-23 and 24 was suggested as "it is not a fact that his daughter was handicapped to the extent of half of her body." "It is not a fact that his daughter happens to be handicapped since her childhood and he intentionally withheld the same." The remaining witnesses have not been tested on that very score.

14. Furthermore, it is evident from the evidence of the witnesses that during course of cross-examination right from PW-1 to PW-8, no cross-examination has been made on behalf of appellants in order to suggest that there was no presence of Guria at her sasural that means to say, at the place of appellants. There happens to be no cross-examination or even suggested that she disappeared on her own deserting her sasural. There happens to be no cross-examination or suggestion at the end of the appellants to any of the PWs including that of doctor that dead body was non-identifiable. That being so, it will be the ultimate acceptance regarding dead body that of deceased and so, she met with homicidal death in the background of finding so recorded by the PW-10 as follows:-

"Whole body contaminated with soil. Putrid smell coming out from the body. Both eyes opened. Teeth exposed out. Rigor-mortis absent in all four limbs. Body was decomposed, carbon and Scot particles present in mouth and nasopharynex. Burnt part of cloths was found sticped place to place over the body. Whole thuckness of skin subcutaneous tissue, musche burnt in pugilistic attitude. Beneath the burnt skin over the both wrist joint ligature mark present over both wrist posteropaleral part except anterior part of wrist and also both ankle joint the ligature mark present-above the malicious region symmetrically present bilateral antennary. Total burnt percentage as about 95-100%

On Dissection-Head-All gremial bonds intact. Brain matter soft and suggish. Neeth-Soot particles present in trachea. Chest-Thoracic cage intact-Both lungs intact and congested. Head-Dark coloured blood present in heart chambers. Abdomen-Stomach-empty. Altogether abdominal viscera intact and saphind extremely bolod in clear liquidified. Uterus-small and non-grand.External genitalia-Burnt.

Opinion-The cause of death in my opinion is due to hyperdemic shock resulting from alive fire. Time elapsed since death-within seven days."

15. Apart from this, from the evidence of I.O. (PW-9), it is apparent that he, during course of investigation came to know about having the dead body buried, which was exhumed and for that, inquest was prepared and dead body was sent to post mortem. Again, no cross-examination is there.

16. In the aforesaid background, the deceased while staying at her sasural, within four corners of her house, then in that circumstance, whatever event was committed happens to be within the fore-corners of the house was to be exclusively within the knowledge of the appellants, which they happen to be under legal obligation to explain as provided under Section 106 of the Evidence Act wherein they failed.

17. InChaman and another v. State of Uttarakhand reported in A.I.R. 2016 SC 1912, [LQ/SC/2016/553] it has been held:-

"26. Significantly, the proved abduction of the deceased from his house by the appellants is per se a criminal offence and carries with it a much higher degree of sinister culpability compared to any phenomenon of "last seen together", simpliciter. Further the deceased being in the custody of the appellants after his abduction on 12.6.1996, it was within their special knowledge as to how he had been dealt with by them thereafter before his dead body was found in a decomposed state in a nearby jungle. No explanation is forthcoming in any form in this regard from the appellants.

27. This Court inState of West Bengal (A.I.R. 2000 SC 2988) [LQ/SC/2000/1285] in a somewhat similar fact situation, where the deceased was abducted by the accused persons and thereafter his mangled body was found, held that 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 fossilised doctrine as if it admits of no process of intelligent reasoning. It was enunciated that the doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule qua the purport of presumption of fact as a rule in the law of evidence. It was observed thus:

"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. 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."

28. Adverting to the facts, this Court ruled that as the prosecution had succeeded in establishing that the deceased had been abducted by the accused, they alone knew what happened to him until he was with them and if he was found murdered in a short time, after the abduction, the permitted reasoning process would enable the court to draw the presumption that the accused had murdered him. It was held that such inference can be disrupted, if the accused would tell the Court what else had happened to the deceased at least until he was in their custody.

29. Referring to Section 106 of the Evidence Act, it was propounded that the said section was not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but would apply to cases where prosecution had succeeded in proving facts from which a reasonable inference could be drawn regarding the existence of certain other facts, unless the accused, by virtue of his special knowledge regarding such facts, succeed to offer any explanation, to drive the court to draw a different inference.

30. The following observations by this Court in the context of above legal provision inShambhu Nath Mehra v. State of Ajmer AIR 1956 SC 404 [LQ/SC/1956/23] was adverted to with approval.

"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 relive 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 facts which are especially within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word especially stresses that it means facts that are pre-eminently or exceptionally within his knowledge."

31. Proof beyond reasonable doubt, as has been held in a plethora of decisions of this Court, is only a guideline and not a fetish and that someone, who is guilty, cannot get away with impunity only because truth may suffer some infirmity when projected through human processes as has been observed inInder Singh and another v. The State (Delhi Administration) (1978) 4 SCC 161 [LQ/SC/1978/78] . A caveat against exaggerated devotion to the rule of benefit of doubt to nurture fanciful doubts or lingering suspicion so as to destroy social defence has been sounded by this Court inGurbachan Singh v. Satpal Singh and others (1990) 1 SCC 445 [LQ/SC/1989/483] . It has been propounded that reasonable doubt is simply that degree of doubt which would permit a reasonable and a just man to come to a conclusion. It has been underlined therein that reasonableness of doubt must be commensurate to the nature of the offence to be investigated."

18. From the statement recorded under Section313Cr.P.C., 1973 it is apparent that though it was solely confined with regard to dowry death, but no-explanation has been given at their end. Moreover, the question having framed by the Court is not at all happily worded, even then, the appellants were knowing since before that they are facing trial for causing death of Guria, be it homicidal or dowry death (affirmative) and so, there should have been proper explanation during course of statement recorded under Section313Cr.P.C., 1973 InGaneshlal v. State of Maharashtra reported in (1992) 3 SCC 106 [LQ/SC/1992/320] , it has been held:-

"11. From this evidence it is clear that the accused appellant and his family members were present in the house at the time when the deceased was burning due to fire lit after pouring kerosene on her and they made no attempt to save her. The contention that the Doctor had stated that the death was instantaneous and nothing was left for the appellant and the other family members to save her, is unacceptable. The normal ordinary human conduct would be that when one of their inmates, namely Kanchana was in flames, they would have made every endeavour to save her life, if it were a case of suicide, and call the people to come to their rescue to save her life or at least would have sought first aid from PW-6, who is next door neighbour, to save the life of the deceased. No such attempt was made nor even attempted. On the other hand the appellants earliest attempt was to misguide that Kanchana died due to short circuit. This attempt was burried fathom deep from the evidence of PW.10, Elect. Engr. Then they set up the plea of suicide. We have Ex. 73, the first information report, immediately lodged by A-6 with the police. We need not go into the question as to what extend the admission by a co-accused would be used against the appellant. Suffice it to state that in his examination under section313Cr. P.C., 1973 the appellant admitted that A-6 stated that the deceased caught fire while she was handling the wet clothes for drying, due to short circuit. In Ex-73, it was also stated that this information was conveyed by the appellant himself. This admission is not only a relevant fact under section 8 of Evidence Act as res gestae but a most important circumstance against the appellant. The indifferent and hard hearted conduct are also important circumstances. It was also admitted that the walls in the room became blackish due to smoke. It is settled law that the conduct of an accused in an offence previous and subsequent to the crime are relevant facts. Absence of any attempt to save the life of the deceased Kanchana while she was burning and was charred to death, their conduct in not attempting to give any medical aid, the conduct of the appellant immediately after the deceased was soaked with kerosene and litting fire after closing the door A.6 obviously opened it after ensuring that she had died, the appellants coming down and standing at the grill gate on ground floor; the appellant shouted that uncle A.6 should close down falsely proclaimed that there was short circuit; implying to scare away the people from attempting to save Kanchana. These are most telling and relevant crucial facts apart from repulsive inhuman conduct. The false plea of suicide is yet another relevant fact. When the death had occurred in their custody the appellant is under an obligation in Section. 313 Cr. P.C. statement at least to give a plausible explanation for the cause of her death. No such attempt was even made excepting denying the prosecution case. These facts completely are inconsistent with the innocence, but consistent with the hypothesis that the appellant is a prime accused in the commission of gruesome murder of his wife. The circumstantial evidence thus discussed is complete and consistent with the only conclusion that the inmates alone committed the crime and the appellant was one among them."

19. InTrimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681 [LQ/SC/2006/929] , it has been held:-

"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. (SeeStirland v. Director of Public Prosecution 1944 AC 315quoted with approval by Arijit Pasayat, J. inState of Punjab v. Karnail Singh (2003) 11 SCC 271 [LQ/SC/2003/787] ). 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 traveling 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 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.

16. A somewhat similar question was examined by this Court in connection with Section 167 and 178-A of the Sea Customs Act inCollector of Customs, Madras & Ors. v. D. Bhoormull AIR 1974 SC 859 [LQ/SC/1974/133] and it will be apt to reproduce paras 30 to 32 of the reports which are as under :

"30. It cannot be disputed that in proceedings for imposing penalties under Clause (8) of Section 167 to which Section 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it - "all exactness is a fake". El Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent mans estimate as to the probabilities of the case.

31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered - to use the words of Lord Mansfield inBlatch v. Archer (1774) 1 Cowp. 63 at p.65"according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.

32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he falls to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in Law of Evidence, (12th Edn. Article 320, page 291), the "presumption of innocence is, no doubt, presumptio juris; but every days practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property", though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice.

(Emphasis supplied)

17. The aforesaid principle has been approved and followed inBalram Prasad Agrawal v. State of Bihar & Ors. AIR 1997 SC 1830 [LQ/SC/1996/2159] where a married woman had committed suicide on account of ill-treatment meted out to her by her husband and in-laws on account of demand of dowry and being issue-less.

18. The question of burden of proof where some facts are within the personal knowledge of the accused was examined inState of West Bengal v. Mir Mohammad Omar & Ors. (2000) 8 SCC 382 [LQ/SC/2000/1285] . In this case the assailants forcibly dragged the deceased Mahesh 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. 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 IPC and sentenced them to 10 years RI. 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 murder charge. The accused had not given any explanation as to what happened to Mahesh after he was abducted by them. The learned 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 had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act and laid down the following principle in paras 31 to 34 of the reports :

"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 fossilised 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.

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

33. 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. 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.

34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least until he was in their custody."

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

20. InRam Gulam Chaudhary & Ors. v. State of Bihar (2001) 8 SCC 311 [LQ/SC/2001/2174] , the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they have murdered the boy. It was further observed that 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 accused by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference.

21. In a case based on circumstantial evidence where no eye-witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [SeeState of Tamil Nadu v. Rajendran (1999) 8 SCC 679 [LQ/SC/1999/919] ( para 6);State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 [LQ/SC/1992/360] (para 40);State of Maharashtra v. Suresh (2000) 1 SCC 471 [LQ/SC/1999/1215] ( para 27);Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 [LQ/SC/2001/2490] ( para 15) andGulab Chand v. State of M.P. (1995) 3 SCC 574 [LQ/SC/1995/438] ( para 4)].

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 placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. InNika Ram v. State of Himachal Pradesh AIR 1972 SC 2077 [LQ/SC/1972/270] it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with khokhri and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. InGaneshlal v. State of Maharashtra (1992) 3 SCC 106 [LQ/SC/1992/320] the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section313Cr.P.C., 1973 The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. InState of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 [LQ/SC/1992/360] the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. InState of Tamil Nadu v. Rajendran (1999) 8 SCC 679 [LQ/SC/1999/919] the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime."

20. InState of Rajasthan v. Thakur Singh reported in 2014 CRI.L.J. 4047, it has been held:-

"22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts."

21. The Honble Apex Court inPrithipal Singh v. State of Punjab reported in (2012) 1 SCC 10 [LQ/SC/2011/1434 ;] , it has been held as follows:-

"35. InEknath Shankarrao Mukkawar v. State of Maharashtra, AIR 1977 SC 1177 [LQ/SC/1977/176] , this Court held :

"6. We should at once remove the misgiving that the new Code of Criminal Procedure, 1973, has abolished the High Courts power of enhancement of sentence by exercising revisional jurisdiction, suo motu. The provision for appeal against inadequacy of sentence by the State Government or the Central Government does not lead to such a conclusion. High Courts power of enhancement of sentence, in an appropriate case, by exercising suo motu power of revision is still extant under section 397 read with Section401Criminal Procedure Code, 1973, inasmuch as the High Court can "by itself" call for the record of proceedings of any inferior criminal court under its jurisdiction. The provision of Section 401 (4) is a bar to a party, who does not appeal, when appeal lies, but applies in revision. Such a legal bar under Section 401 (4) does not stand in the way of the High Courts exercise of power of revision, suo motu, which continues as before in the new Code."

36. InSurendra Singh Rautela @ Surendra Singh Bengali v. State of Bihar (Now State of Jharkhand), AIR 2002 SC 260 [LQ/SC/2001/2745] , this Court reconsidered the issue and held:

"It is well settled that the High Court, suo motu in exercise of revisional jurisdiction, can enhance the sentence of an accused awarded by the trial Court and the same is not affected merely because an appeal has been provided under Section 377 of the Code for enhancement of sentence and no such appeal has been preferred."

(See also:Nadir Khan v. The State (Delhi Administration), AIR 1976 SC 2205 [LQ/SC/1975/210] ;Govind Ramji Jadhav v. State of Maharashtra (1990) 4 SCC 718 [LQ/SC/1990/140] ; andK. Pandurangan etc. v. S.S.R. Velusamy & Anr. AIR 2003 SC 3318 [LQ/SC/2003/948] ).

37. InJayaram Vithoba & Anr. v. The State of Bombay, AIR 1956 SC 146 [LQ/SC/1955/113] , this Court held that the suo motu powers of enhancement under revisional jurisdiction can be exercised only after giving notice/opportunity of hearing to the accused.

38. In view of the above, the law can be summarised that the High Court in exercise of its power under section386(e) Cr.P.C., 1973 is competent to enhance the sentence suo motu. However, such a course is permissible only after giving opportunity of hearing to the accused."

22. From the judgment impugned, it is apparent that the learned lower Court had completely overlooked while scrutinizing the evidence of the PWs, whether it happens to be a case of dowry death or of murder, and that happens to be reason behind, absence of finding on that very score. Even, the learned lower Court failed to observe that no offence under Section 302 of the I.P.C. is made out and so, acquitted.

23. After going through the judgment impugned, the mistake which has been detected and referred here in above, propelled at first sight to remand, but considering the fact that it will consume time, and further, appellate Court is found duly within its competence to proceed ahead, to decide the same in its finality as has been held by the Apex Court, referred hereinabove, consequent thereupon, after taking into account the overall situation, it looks prudent to issue show-cause to the appellants why not they be held guilty for an offence punishable under Section 302/34 of the I.P.C., 498(A)/34 of the I.P.C. along with Section 201/34 of the I.P.C. whereunder they all have been convicted and sentenced for, and accordingly, the office is directed so. Because of the fact that as per roster, this Bench is only competent enough to hear the appeal prescribing the punishment upto 10 years and further, as per Patna High Court Rules, the matter relating to life imprisonment, hanging or any kind of sentence having more than 10 years is to be heard by the Division Bench on account thereof, office is directed to list before the Division Bench after getting permission from Honble the Chief Justice.