The Bombay High Court, recently while acquitting a husband accused of murder of his wife, observed that Section 106 of the Indian Evidence Act, cannot be read into, merely because a wife’s dead body was found inside a house which was a “normal place of abode” for the accused-husband.

Section 106 of the Indian Evidence Act lays a burden of proving fact on a person, when any fact is especially within his/her knowledge.

Accordingly, a Aurangabad Bench of Justice Vibha Kankanwadi, and Justice Abhay S. Waghwase on the facts and circumstances observed, “Specific evidence, therefore, was necessary to state that the deceased was in the company of her husband or the accused had not gone anywhere outside the house on that day. Merely because the dead body was inside the house and it was the normal place of abode for the accused, we cannot employ the principle under Section 106 of the Indian Evidence Act and put a burden on the accused that he should explain the circumstances in which his wife was murdered inside the house”.

The bench had further held that only because the accused was the husband of the deceased, then only on that ground, it cannot be said that he should give explanation in respect of the circumstances in which his wife was found dead.

Advocate K.A. Ingle appeared for the appellant and APP S.J. Salgare appeared for the respondent.

The appeal was filed by the original accused no. 1-husband who was convicted by the Additional Sessions Judge, Aurangabad, for the offence punishable under Section 302, 498-A of the Indian Penal Code, 1860. However, the trial court acquitted the other accused persons-in-laws of the deceased who lived in the same house (sanctioned by the government).

As per the father’s allegations the accused persons harassed, abused, assaulted the deceased for dowry. As per the prosecution, the cause of death of the deceased was ‘asphyxia due to strangulation’ based on the post mortem report and testimony of the Doctor. However, as per the informant the casue of death was snake bite.

Although, the High Court considering the testimony of the expert and the Postmortem Report concluded the cause of death was strangulation and not suffocation, and that the death was homicidal in nature.

Now the appellant herein argued that from the testimonies it was very clear that none of them had seen deceased in the company of accused prior to her death. Further that since the case was based on circumstantial evidence, therefore, five golden principles laid down in Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 should have been proved.

Furthermore, it was contended that based on the same set of facts if accused Nos.2 and 3 are acquitted, then accused No.1 could not have been convicted by the trial court, and therefore the court has not appreciated the evidence properly

On the contrary, the respondent argued that the present appellant being the husband and residing in the same house should give explanation regarding the circumstance in which his wife was found dead inside the house. However, there was no such attempt, thus, the burden on the shoulders of accused under Section 106 of the Indian Evidence Act has not been discharged.

Noting the factual circumstances, and that it could not be presumed that the accused was inside the house at the relevant time, the bench thus observed, “This situation has been upheld by the learned trial Judge to be the accepted situation and, therefore, it is said that accused Nos.2 and 3 being residing separately the offence has not been proved against them. We are not convinced with that kind of reasons. Here, neither the informant nor the State have challenged the acquittal of original accused Nos.2 and 3. If two rooms are separated only by a wall, it cannot be said that the person residing on one side of the wall cannot come on the other side of the wall and then harass or commit murder. Therefore, the said reason itself is not appealing. The spot where the deceased was lying is said to be on the ground near the cot in the room. Therefore, the spot panchnama by itself is not corroborating the testimony of PW 8 Dr. Madhav Jadhav. It can also be seen from the spot panchnama that no abnormality was found. Almost all the rooms and surroundings appears to have been searched at the time of spot panchnama”.

The bench had also relied upon the judgment in State of Rajasthan vs. Kashi Ram [(2006) 12 SCC 254] which says that Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution.

Accordingly, while acquitting the appellant, the bench was of the opinion that Section 27 and Section 106 of the Indian Evidence Act has not been properly interpreted and utilized by the trial court, and that there was no such evidence which can be said to be proving the offence beyond reasonable doubt.

Cause Title: Nanasaheb Changdeo Nikam v. The State of Maharashtra [Neutral Citation: 2023:BHC-AUG:24030-DB]

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