In CRA-D-1163-DB-2010-PUNJ HC- Person, who was last seen or last residing with deceased, must offer explanation as to how and when he parted company with deceased; If he fails to furnish probable & satisfactory explanation, then burden cast upon him u/s 106 of Indian Evidence Act is not discharged: P&H HC
Justices Sureshwar Thakur and N.S. Shekhawat [22-09-2022]

Read Order: Karan Kumar v. State of Punjab 

Monika Rahar

Chandigarh, September 29, 2022:  While dealing with a murder case of a married woman who, after being subjected to sexual assault was evetually stragulated by her paramour, the Punjab and Haryana High Court has held that if a person is last seen or last residing with the deceased, he must offer an explanation as to how and when he parted company with the deceased.

“He is under a legal obligation to furnish a probable and satisfactory explanation to the Court and if he fails to offer such an explanation on the basis of the facts with in his special knowledge, the burden cast upon him under Section 106 of the Act is not discharged”, asserted the Division Bench of Justices Sureshwar Thakur and N.S. Shekhawat while also adding, “More particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, such a failure by itself can provide an additional link in the chain of circumstances proved against him. At the same time, it can never be suggested that Section 106 of the Evidence Act shifts the burden of proof of a criminal trial on the accused and such burden always rests on the prosecution.”

The case of the prosecution in a nutshell was that the accused-appellant kidnapped the deceased (a married woman) and kept her in a rented room in the complainant’s house. One day, suspecting foul smell, the complainant checked the room which was locked from the outside. Upon breaking the door open, the complainant found the dead body of the deceased and thus, while alleging that the deceased was kidnapped and killed by her paramour (accused), the present FIR was registered. 

In the FIR, the complainant not only named the appellant but also mentioned the parentage and complete address of the appellant as well as of the deceased. The Trial Court held the appellant guilty for the offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life. The Trial Court relied upon the oral statements of the prosecution witnesses which were supported by the medical evidence. 

After hearing the parties, the Court opined at the very outset that the complainant was not inimical towards the appellant and he had no reason to name the appellant in the FIR which was lodged promptly on finding the dead body by the complainant. 

Further, discarding the argument of the appellant’s counsel to the effect that there was written proof of renting the room to the appellant, the Court observed that it many small cities, every landlord does not execute a rent deed in favour of his tenants especially when most such tenants belong to the poor strata of the society and owing to the nature of their work, they keep on changing their accommodation. On the contrary, the Court stated that the complainant furnished complete details of the accused and the deceased, that is, their names, parentage and full address. 

“This clearly establishes that proper record regarding the tenants had been maintained by the complainant and on noticing the commission of offence, he immediately reported the matter to the police with complete particulars of the tenant”, the Court held. 

Further, the Bench also opined that the fact that some of the witnesses had turned hostile could not be a ground itself to acquit the accused, especially when the testimonies of the complainant and that one another tenant who was living on rent in the same premise, were consistent and sufficient to convict the appellant herein.  

Consequently, the Bench held that the mere presence or absence of large number witnesses cannot be the basis of conviction. It also opined, 

“It is the quality of evidence and not the number of witnesses, which is relevant. In fact, the quality of evidence always weighs with the court in determining the guilt of the accused or otherwise. The prosecution is under the responsibility of bringing its case beyond reasonable doubt and cannot escape that responsibility. In order to prove its case beyond reasonable doubt, the evidence produced by the prosecution has to be qualitative and may not be quantitative in nature.”

It was the case of the State Counsel that the incident took place inside the privacy of the house and in such a situation, it was difficult for the prosecution to lead any direct evidence to establish the guilt of the accused. The Counsel added that the doctor had conclusively opined that it was a case of homicidal death and the onus was heavy on the appellant, who was residing with the deceased to give an explanation with regard to the commission of the crime. 

In this regard, the Court was of the opinion that the most important aspect was where the death was caused and the dead body was found. The Court added that it was in the precincts of the house/room taken on rent by the appellant, where only the appellant and Satnam Kaur (since deceased) were staying. Still further, there was no possibility of somebody from outside coming and strangling the deceased and that too without any commotion being caused or noticed by the neighbors. We are confronted with a factual situation, where the appellant herein, as a lover, is stated to have caused the death of his partner by strangulation, the Court added. 

Also, the Court observed that the appellant-accused failed to offer an explanation as to how and when he parted company with the deceased and it would have a bearing on the effect of last seen in the instant case. 

While holding that under Section 106 of the Indian Evidence Act, the burden of proof for any fact i.e. especially within the knowledge of a person lies upon such person, the Division Bench held, 

“Thus, if a person is last seen or last residing with the deceased, as in the instant case, he must offer an explanation as to how and when he parted company with the deceased. He is under a legal obligation to furnish a probable and satisfactory explanation to the Court and if he fails to offer such an explanation on the basis of the facts within his special knowledge, the burden cast upon him under Section 106 of the Act is not discharged.”

Further, it was held, 

“More particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, such a failure by itself can provide an additional link in the chain of circumstances proved against him.”

It was also held that it can never be suggested that Section 106 of the Evidence Act shifts the burden of proof of a criminal trial on the accused and such burden always rests on the prosecution. 

“Section 106 of the Act only lays down the rule that when the accused does not throw any light upon the facts which are especially within his knowledge and which cannot support any theory or hypothesis compatible with in his innocence, the court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances… As per Section 101 of the Act, whoever desires any Court to give a judgment as to a liability dependent on the existence of facts, he must prove that those facts exist… Thus apparently, Section 106 of the Act constitutes an exception to Section 101 of the Act”, the bench held. 

Adverting to the present case, the Court held that before she was strangulated to death, the deceased was subjected to sexual intercourse. 

Thus, upholding the impugned decision, the Court dismissed the present appeal.