The incriminating circumstances which point to the guilt of the accused had been put to him, yet he chose not to give any explanation under Section 313 Cr PC except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer an appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances. The judgment was passed by the High Court of Gauhati in the case of Gonesh Bhomij v. State of Assam [CRL.A(J)/81/2018] by Division Bench consisting of Hon’ble Justice N. Kotiswar Singh & Justice Soumitra Saikia.
The facts of the case are that an FIR was lodged brother of the deceased, that on the previous night her husband the appellant assaulted her and on proceeding to his sister’s place he found her lying dead inside the house, suspected of being killed by the appellant. Further, an investigation was accordingly carried out and on completion of the same, the appellant was charge-sheeted. The prosecution examined 8 witnesses. The defence, however, denied the charges and did not adduce any evidence. The Ld. Sessions Judge on the basis of the testimonial and other evidence brought on record convicted the appellant under Section 302 IPC.
The Learned Trial Court held that “it was proved beyond all reasonable doubts that on the day of occurrence, the appellant had hit the deceased on her mouth with a bottle and thereafter, threw her into a pond after which she died of drowning, which was corroborated by the medical evidence and accordingly, convicted the appellant under Section 302 of the IPC.”
While clearing the question of burden of proof the court relied on State of Punjab v. Karnail Singh, wherein it was held that “the duty of 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.”
The court 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.
The court while dismissing the petition noted that that “Since the appellant had physically assaulted the deceased a few hours before her death, the propensity of the appellant to do more harm to the deceased is a distinct possibility. There is also the history of a frequent quarrel between them and also of the beating of his wife by the appellant.”
