SAWAL DAS versus STATE OF BIHAR

Citation: [1974] 3 S.C.R. 74 · Decided: 09-01-1974 · Supreme Court of India · Bench: M. HAMEEDULLAH BEG · Disposal: Appeal(s) allowed

Cited by 6 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

74 
SAWAL DAS 
STAT);: OF BIHAR 
January 9, 1974 
[M. H. BEG AND P. N. BHAGWATI, JJ.J 
Indian Penal Code (Act 45 of 1860), s. 34 and 302-Circun1sta11tial evicknce-
Accusedchargedunders. 302/34-When accused1nay be convicted unders. 
302, 
when the others are acquitted under s. 302/34-0./Jence under s. 201-Sentence. 
Evidence Act (1 of 1872) Ss. 103and106-Scape of 
The appellant is the husband of the deceased. The evidence in the case estab-
lished that, the relations between .the· deceased and her mother-in-law; were very 
strained; that, on the morning of the murder following a quarrel between them the 
appellant went with his wife, the deceased, into a room, into which his father and 
mother then followed; that, immediately thereafter, cries of the murdered woman 
were heard to save her from being killed; and, that, a little while later, the appellant 
and his father conveyed the dead body of the deceased and disposed it of: by burn-
ing it at the burning ghat without informing the relations of the deceased who were 
Jiving in the town and without performing any funeral rites. 
On this evidence, rejecting the appellant's contention that the deceased died 
accidentally of injuries caused by fire, the trial court convicted the appeJlant, his 
father; and mother for offences under s. 302/34 I. P. C. The trial court also con. 
victed the appellant and his father under s. 201, J, P. C. 
On appeal, the 
High 
Court acquitted them of the offence under s. 302/34 I. P. C. but found the appellant 
alone guilty of the oftCnce under s. 302 J. P. C. 
The High Court also found the 
appellant and his father guilty under s. 201 I. P._C. and passed a sentence of three 
years against the father. No separate sentence on the appellant was passed in view 
of the sentence of life imprisonment for the offence under s. 302. 
' 
In appeal to this Court, 
HELD : (Q The evidence regarding death by burning consisted 1nostly of 
rumours and beliefs. It was clearly hearsay and was rightly excluded by the lower 
courts. 
(2) Under Ss. 103 and 106, Evidence Act, the burden of proving such a plea 
specifically set up by an accused, which n1ay absolve hin1 from criminal liability, 
lies upon him; though, the quantum of evidence by which he may succeed in dis-
charging the burden, may be lower than the burdcil'resting upon the prosecution 
to establish the guilt of the accused beyond reasonable doubt. The best evidence 
would have been that of a doctor who could have been called by the appellant on 
his phone, but no doctor was called. [79BJ 
(3) But, neither the application of s. 103 nor of s. 106, Evidence Act, could, 
however, absolve the prosecution from the duty of discharging its general or pri-
mary burden of proving the prosecution case beyond reasonable doubt. It is 
only \Vhen the prosecution has led evidence which, if believed, will sustain a con-
viction, or, which makes out a prima facie case that the question arises of consider-
ing facts of which the burden of proof may lie upon the accused. [79D] 
(4) In the present case, after the acquittal of the appellant's father and 1nother 
for murder under Ss. 302/34, I. P. C., the individual liability of the appellant has 
to be established by the prosecution before 
he could be convicted under s. 302 
J.P. C. simp/iciter.- There is nothing in the present case which could fasten or con-
clusively fix the li:ability for any particular or separate act of the appellant which 
may be said to have caused his wife's death. 
[79H] 
K. G. Patilv. State of Maharashtra, [1964] I S.C.R. 678, Solian Lal v. State of 
U. P., [1971] l S.C,C. 498 and Yashwant anil Ors. v. Stare of Maharashtra, [1973J 
I S.C;R. 291, followed. 
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SAWAL DAS V. BIHAR (Beg, /,) 
75 
(5) Further, the prosecution has not examined an important witness namely,. 
the maid servant, who was on the varandah at the time of the occurrence. Her· 
evidence was necessar1 for unfolding the prosecution case and hence, the prose-
cution should not have withheld her evidence whatever may be its effect upon the 
ca5e. The appellant could, there ask the Court to give him the benefit of the pre-
sumption under s. 114 illus_tration (g), Evidence act and to infer that, if she had 
been produced, her evidence would have damaged the prosecution case agai~t 
the appellant. Her statement under s. 164, Cr. P. C., could only be used as evi-
dence to corroborate or contradict her if she had appeared as a witness at the

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