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<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> <html xmlns="http://www.w3.org/1999/xhtml"> <head> </head> <body> <div style="font-family:Verdana, Geneva, sans-serif; font-size:12px; text-align:justify"> <table width="800" border="0" style="border:1px solid #ccc;padding:5px;" align="center" cellpadding="6" cellspacing="0"> <tr> <td align="left" valign="top"> High Court of Allahabad When any fact is especially within the knowledge of any person, the burden of proof to prove that fact is upon him - (12 Oct 2017) </td> </tr> <tr> <td align="left" valign="top">Nupur Talwar and Ors. Vs. State of U.P. and Ors.</td> </tr> <tr> <td align="left" valign="top" style="background-color:#FDEDCE">Present two criminal appeals have been preferred by the Appellants Dr. Nupul Talwar and Dr. Rajesh Talwar under Section 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.), against the judgement passed by Additional Sessions Judge & Designated Judge, by which both the Appellants have been convicted and sentenced to rigorous imprisonment for life and a fine of Rs. 10,000/- each under Section 302/34 IPC, five years rigorous imprisonment and a fine of Rs. 5000/- each under Section 201/34 IPC. In addition Dr. Rajesh Talwar has been convicted and sentenced to one year simple imprisonment and a fine of Rs. 2000/- under Section 203 IPC. All the sentences were directed to run concurrently. 
The applicability of Section 106 of the Indian Evidence Act, 1872 has been lucidly explained by the Apex Court in the case of State of Rajasthan versus Kashi Ram observing that, the provisions of Section 106 of the Evidence Act, itself are unambiguous and categoric in laying down that, when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution.

When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give 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 the accused to offer.

Thus, prosecution has to establish guilt of the Accused filtered of all reasonable prognosis favourable to accused to secure conviction and it is never relieved of its initial duty. It is only when the initial burden has been discharged by the prosecution that, the defence of the accused has to be looked into. Section 106 of the Indian Evidence Act cannot be applied to fasten guilt on the accused, even if the prosecution has failed in its initial burden.

Section 101 to Section 114A of Chapter-VII of the Indian Evidence Act, 1872 deal with subject “Of The Burden Of Proof.” Section 106 of the Indian Evidence Act, provides that when any fact is especially within the knowledge of any person, the burden of proof to prove that fact is upon him. Section 106 is an exception to Section 101 of the Evidence Act which stipulates that, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Section 106 of the Evidence Act has to be read in conjunction with and not in derogation of Section 101 Evidence Act. Section 106 of the Indian Evidence Act, does not relieve prosecution of it's primary and foremost duty to establish the guilt of the accused beyond all reasonable doubts independent of weaknesses of the defence. It is only when prosecution, for well perceptible and acceptable reasons, is unable to lead evidence because of circumstances beyond it's control including the reason that the fact required to be proved was “within the special knowledge of an accused alone” and prosecution could not have known it by due care and diligence, that Section 106 can be resorted to by shifting burden on the accused to divulge that fact which is “in his special knowledge” and if accused fails to offer any reasonable explanation to satiate judicial inquisitive scrutiny, he is liable to be punished. Section 106 of Act, is not meant to be utilized to make up for the prosecution's inability to establish its case by leading, cogent and reliable evidence.

However, once the prosecution establishes entire chain of circumstances together in a conglomerated whole unerringly pointing out that it was accused alone who was the perpetrator of the crime and the manner of happening of the incident could be known to him alone and within his special knowledge, recourse can be taken to Section 106 of the Evidence Act. Aid of Section 106 of the Evidence Act can be invoked only in cases where prosecution could produce evidence regarding commission of crime to bring all other incriminating circumstances and sufficient material on record to prima-facie probablise its case against the accused and no plausible explanation is forthcoming from the accused regarding fact within his special knowledge about the incident.

Before Section 106 of the Evidence Act could be applied in the instant case, it was incumbent upon the prosecution to establish by cogent and reliable evidence that, the Appellants were awake in the night of occurrence; when PW10 Bharti Mandal arrived at the Appellant’s flat at about 6 am on 16th May, 2008, the outer most iron grill door was latched/locked from inside; thirdly even if the outer most iron and grill door was not latched/locked from inside, the Appellants if proved to be awake could have heard noise/sounds in their room at the time of assault in their daughter's bedroom; the deceased Aarushi and Hemraj were assaulted by the Appellants in Aarushi's bedroom and thereafter they had dragged the dead body of Hemraj from the bedroom of Aarushi upto the terrace after wrapping it in a bed sheet; and the injuries found on the dead body of Aarushi and Hemraj inflicted on them by golf club number no. 5 and surgical scalp. The prosecution has failed to prove the aforesaid circumstances which the prosecution was required to prove which could have justified the application of Section 106 of Act to the facts and circumstances of the present case for the purpose of convicting the Appellants for the double murder of their daughter Aarushi and domestic help Hemraj.

During the course of investigation the CBI had arrested and interrogated Krishna Thadarai, Rajkumar and Vijay Mandal, who had remained suspects of the double murder for a considerably long time during the investigation of the case by CBI. Thus, there is no reasonable basis for holding that what had actually happened in the Appellants' flat in the intervening night of 15th/16th May, 2008 was a fact within the special knowledge of the Appellant and since the same was not a fact within their special knowledge Section 106 of the Indian Evidence Act, could not be invoked against Appellants for the purpose of convicting them for the double murder of their daughter Aarushi and domestic help Hemraj on account of their failure to come up with any explanation for the circumstances under which the double murder were committed in their flat in the intervening night of 15/16th May, 2008.

High Court is not satisfied that, the prosecution could not have due knowledge of what had happened inside the flat on the fateful night in spite of due diligence as there was clinching evidence on record which pointed at the presence of outsiders in the flat of the Talwars in the intervening night of 15th/16th May, 2008. Absence of explanation or false explanation or a false plea would merely be an additional link only when it is proved that all other links in the chain are complete and do not suffer from any infirmity. Here, the chain of circumstances is grossly incomplete and broken.

Thus, High Court found that, neither the circumstances from which the conclusion of guilt is sought to be drawn have been fully established nor the same are consistent only with the hypothesis of the guilt of the Appellants. High Court is of opinion that, the circumstances are neither conclusive in nature nor they exclude every possible hypothesis except the one of the guilt of the appellant. The chain of circumstances in this case is not complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the Appellant. The chain of circumstances stood snapped the moment, the prosecution failed to prove by any cogent and reliable evidence that the Appellants' flat was locked from inside when PW10 Bharti Mandal rang the door bell of their flat in the morning of 16th May, 2008 and a strong possibility of outsiders having accessed into the Appellants' flat and left after committing the double murder and in the process latched the middle iron mesh door of the Appellants' flat from outside and left the outer grill door of their flat open evinced from the evidence adduced by the prosecution itself. There is no reason to fasten the Appellants with the guilt of double murder merely on the proof of the deceased being last seen alive with the Appellants in their flat in the night of 15th May, 2008 specially in view of the alternative hypothesis of the double murder covenanted in the prosecution case itself. The conclusion drawn by the learned trial judge to the contrary are per se illegal and vitiated by non consideration of material evidence on record. Suspicion, however grave it may be, cannot take the place of proof.

In Kali Ram v. State of Himachal Pradesh, the Apex Court observed as under : "Another golden thread which runs through the web of the administration of justice in criminal cases is that, if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the Accused should be adopted. This principle has a special relevance in cases where in the guilt of the Accused is sought to be established by circumstantial evidence." In M.G. Agarwal v. State of Maharashtra, the Apex Court held, that if the circumstances proved in a case are consistent either with the innocence of the Accused, or with his guilt, then the Accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the Accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the Accused, and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the Accused, and is entirely consistent with his guilt.

Similarly, Sharad Birdichand Sarda v. State of Maharashtra, this Court held that, graver the crime, greater should be the standard of proof. An Accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an Accused, the Accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the Accused is sought to be established by circumstantial evidence.

The circumstances of present case upon being collectively considered do not lead to the irresistible conclusion that, the Appellants alone are the perpetrators of crime in question and on the evidence adduced in this case certainly two views are possible; one pointing to the guilt of the Appellants; and the other to their innocence and in view of the principles expounded by the Apex Court in the case of Kali Ram, High Court proposed to adopt the view which is favourable to the Appellants. Allahabad High Court held that, the prosecution has failed to prove its case against the Accused-Appellants beyond all reasonable doubts. The conviction of the Appellants recorded by the trial Court under Sections 302/34 and 201/34 of IPC and that of Appellant Dr. Rajesh Talwar under Section 203 of IPC and the sentences awarded to them, are set aside.</td> </tr> <tr> <td align="left" valign="top" >Relevant : State of Rajasthan versus Kashi Ram, Kali Ram v. State of Himachal Pradesh, M.G. Agarwal v. State of Maharashtra, Sharad birdichand sarda v. State of Maharashtra</td> </tr> <tr> <td align="left" valign="top" >Tags : Acquittal, Circumstantial evidence, Benefit of doubt</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr>  <td align="left" valign="top">Source : newsroom.manupatra.com</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr> <td align="left" valign="top">Regards</td> </tr> <tr> <td align="left" valign="top">Team Manupatra</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> </table> </div> </body> </html>