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The Delhi High Court has observed that as per exception carved to Section- 106 of Indian Evidence Act when any fact is especially in knowledge of any person, the burden of proving that fact is upon them.
The single-judge bench of Justice Mukta Gupta was dealing with an appeal was filed against the order of the Trail court, wherein the accused was convicted for the offence punishable under Section 326-A/34 IPC whereby they have been directed to undergo rigorous imprisonment for a period of 11 years and to pay a fine of ₹2 lakhs each, in default whereof to undergo 1 year simple imprisonment. The fine so imposed is to be given to the victim as compensation
Brief Facts of the Case
Victim’s cousin Deepak ( paternal uncle’ son ) got married. Bharat (accused 1) is the brother-in-law of her cousin and Mohinder (accused 2) is the cousin of Bharat. The victim was going back home from work in the evening when two people on the motorcycle came and threw acid on her. After throwing acid they ran away from the place and the Police which was posted over there got her admitted in the hospital and called her family members. The victim suffered grievous injuries, inflicted with acid burns over right forearm, neck, right cheek, left arm and left forearm.
The Trail Court held Bharat and Mohinder liable for the attack after considering all the facts and circumstances of the case. The Trial Court convicted them under section 326-A/34 IPC and have been directed to undergo rigorous imprisonment for the period of 11 years and to pay a fine of ₹2 lakhs each, in default whereof to undergo 1 year simple imprisonment. The fine so imposed is to be given to the victim as compensation. Both Bharat and Mohinder have appealed against the impugned judgment separately which have been dealt together by the High Court.
Counsel's Contentions
Learned Counsel for the appellant Bharat contended that the impugned judgment has been passed by the learned Trial Court by shifting the burden of proof on the accused, though it was the prosecution which was required to prove its case beyond reasonable doubt.
There is no evidence on record to show that the appellant Bharat had asked for the number of the complainant at the time of marriage of Deepak or that Bharat used to call the complainant to enquire about the well-being of his sister, or that one day Bharat came to her home and proposed her for marriage, or that on the refusal of the complainant, Bharat slapped her and took the SIM card of her mobile phone, to establish the motive behind the commission of the alleged offence. The SIM card of the mobile phone allegedly taken by the appellant Bharat was not recovered from his possession.
The prosecution did not even recover the container which was allegedly used by the appellants to through acid on the complainant to prove the version of the prosecution. The victim even changed her stand in her statement recorded under Section 164 Cr.P.C. and her testimony before the Court. The two eye-witness have not supported the case of the prosecution and have stated that they could not see the faces of the two boys or even the number of the bike. Thus the two alleged eye-witnesses, have been planted as eye-witnesses.
According to the learned council the Trail Court overlooked the material improvements under section 164 CRPC.
Learned Counsel also stated that the fact that after the registration of FIR threats were given to withdraw the case is also not reflected in the supplementary statements recorded. Statement of the complainant is further required to be discarded for the reason she signed her statement and if as per her version her hand was hurt due to throwing of acid she could not have signed her statement and the prosecution has not been able to prove the recovery of the alleged bike as well.
Learned Counsel for the appellant Mohinder further contended:
1. No Test Identification Parade of Mohinder was got conducted, thereby his identification in the Court is meaningless. As per the case of the prosecution Mohinder received injury on the left arm, however the shirt which was recovered was found to be intact.
2. The complainant clearly admitted that she had seen Mohidner at the Police Station after the incident and thus the accused was deliberately shown to the victim. Hence, the identification in Court be not relied upon.
3. The two public witnesses did not identify the appellants as the assailants, as they clarified that the two boys fled away at a fast speed
4. Seizure of clothes in itself is suspicious, as no public witness was made to participate. Dr. Sober Chaturvedi who has prepared the MLC has not been produced.
5. While the investigating officer admitted that the acid marks were present at the front portion of the T-Shirt and the left and right legs of the pant, there are no corresponding acid injuries on the appellant Mohinder. The only old injury was on the right forearm where there was no corresponding acid mark on the shirt.
Learned APP for the State refuted the arguments of learned counsel for the appellants, he contended that the victim suffered grievous injuries, inflicted with acid burns over right forearm, neck, right cheek, left arm and left forearm. Thus, the victim who suffered the acidly attack and was admittedly present at the spot would have also tried to save herself and would not be in a position to find the number of the bike, or to chase the culprits who were on the motor-bike.
The Initial statement of the victim was recorded in the hospital itself wherein she briefly stated what happened to her and sought action. Thus she gave the details in her subsequent statement recorded under Section 164 Cr.P.C. She further deposed that even on the date of incident, in the morning Bharat spoke to her on the mobile phone of her friend Rakhi and asked her to meet in the evening and upon refusal, threatened to spoil her face. Merely because the victim did not inform these facts to her parents as she did not want to spoil the relationship of her cousin with his wife, as Bharat was the brother-in-law of her cousin, would not lead to the conclusion that version of the victim was concocted.
The call detail records of Bharat corroborate the version that he called up on the mobile phone of Rakhi, the friend of the victim on the morning of the day of incident and at the time of incident the location of Bharat was near the place of incident. Further, Bharat had even called on the mobile phone of the mother of the victim.
Merely because Laxmi and Rakhi did not identify the accused person would not belie the version of the victim. Even though the victim could not give the complete number of the bike, however she stated that it was of black colour and the last three digits were 601 and that the other person was of medium built and wearing blue T-Shirt. Motorcycle of black colour bearing registration No. DL-8SM-6601 was seized from Bharat.
The defence set up of false implication due to property dispute between the father of the complainant and the complainant’s cousin Deepak is without any basis, as nothing has been placed on record to show that there was any joint property between the parties.
The learned counsel for the appellant argued that “the impugned
judgment has been passed by the learned Trial Court by shifting the
burden of proof on the accused, though it was the prosecution
which was required to prove its case beyond reasonable doubt”.
High Court's Observation
The Court noted that it is the general rule in a criminal case that the prosecution has the burden of proof. In this case Mohinder clothes had the acid burn marks it is especially in his knowledge which he is required to explain according to the terms of Section 106 Evidence Act and failure of any explanation for the same acid marks on the clothes is an incriminating evidence in the chain of circumstances against him.
The learned APP for the State have also stated it in its contentions. They referred a case ARVIND SINGH vs. STATE OF MAHARASHTRA, 2020 Latest Caselaw 331 SC , in which the Hon’ble Supreme Court reiterated the principle of presumption provided under Section 106 Evidence Act .
In view of the above, the Court reiterated that the general law in the criminal case is that the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. It states that when any fact is especially in knowledge of any person, the burden of proving that fact is upon them. 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
The court observed that the version of the victim is duly supports by the chain of circumstances which prove beyond reasonable doubt the offence committed by the two appellants. The court found no error in the impugned judgment of conviction and order on sentence.
The appeals were accordingly dismissed.
CASE TITLE: BHARAT and MOHINDER vs STATE OF NCT OF DELHI
CASE DETAILS: CRL.A. 723/2017 & CRL.M.B. 969/2021
CORAM: Justice Mukta Gupta
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