Kanwaljit Singh Ahluwalia, J. - (1.) Way back in 1988 Justice M.M. Punchhi, as His Lordship then was Judge of the Punjab & Haryana High Court, in Amarjit Singh v/s. State of Punjab, (Punjab and Haryana) (DB), 1989 (1) R.C.R. (Criminal) 18, regarding application of Sec. 106 of the Indian Evidence Act in the case of death of the wife where husband is prosecuted observed as under: - "19. Much water has flown under the bridges since them. Sec. 106, Indian Evidence Act, 1872, stands rusted by dis -use in criminal, cases. In the backdrop of thousands and thousands of dowry -death cases in which direct evidence of the crime is not available due to the set -up of homes in India, we feel a time has come to employ the said provision to meet an exceptional situation; in appropriate case when it would be disproportionately difficult by the prosecution to establish facts. By and large in such cases, the young bride, by tradition is displaced from her parental roof to go under the roof of her husband's family. Being a stranger in that environment and the trauma she experiences by her transplantation, it is her legitimate due that the people who have brought her to that house, look after her needs and give her the necessary protection, physical and mental, so that she takes roots in the new soil. It is elementary that she has freedom from fear in the first few years till she gains ground. If fear be instilled in her mind by the attitude of the husband and/or his family members she may even be afraid to go to sleep, lest anything be done to her while asleep. If the tradition bound society puts the bride in the four walls of a new house and those four -walls not remain open to the view and gaze of others all the time, and in that closeted set -up her live body is turned into a corpse or is made to turn into a corpse I see then no reason why the society cannot insist the inmates of the house, being accountable in terms of Sec. 106, Indian Evidence Act, 1872, to disclose facts especially within the knowledge of the accused. As it seems to us, this is one of the exceptional situations the provision was designed to meet. Vivian Bose. J. says further in the same report preserving the exceptional situation "This is a Sec. which must be considered in a commonsense way and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the case with which the accused could prove them, are all matters that must be taken into consideration. The Sec. cannot be used to undermine the well established rule of law that, save in a very exceptional class of cases, the burden is on the prosecution and never shifts." "20. As it appears to us, in the changing social pattern, With the greed for dowry and lust for money respect for human life, and more so of the female -victim involved, has gone with the wind. The closed doors behind which such crimes are committed, the opportunity to choose the time of the commission of crime with the accused, the nonavailability of direct evidence and the non -availability of even circumstantial evidence, which would complete the chain of guilt, has led to a deplorable situation putting to ridicule the rules of trial and the role of the judge. 21. It is well recognised in criminal law of breach of trust that where property is entrusted to another, it is the duty of that other to give the true account of what he did with the property so entrusted to him and his failure to do so raises under Sec. 105 a presumption that he had criminally misappropriated the property so entrusted to him. We view that the position of a bride, cannot be worse. Her welfare and physical protection is also in trust with the people in whose care she has been put in and if she has been deprived of her life, the person to whom she stood entrusted must necessarily account for as he or she alone is supposed to have a special knowledge about the crime especially when he or she was the last person to be seen together or expected to be together with the deceased. It would not be out of place to note a quotation from Syrus -Judex -damnatur -cum -nocens absolvitur. "The Judge is condemned when the guilty is acquitted."
(2.) In the present case, Jitendra Singh, the appellant herein, was tried for offences punishable under Ss. 498 -A, 302 and in alternate under Sec. 304 -B of Indian Penal Code.
(3.) The trial Judge by returning a finding, acquitted the appellant of offence under Ss. 304 -B and 498 -A I.P.C. but held him guilty of offence under Sec. 302 I.P.C. primarily on the ground that the death of Smt. Archna Devi, the wife of the appellant was homicidal & it is a case of strangulation and the appellant has not furnished any explanation in the statement recorded under Sec. 313 Cr.P.C. and, therefore, to record conviction of the appellant invoked Sec. 106 of the Indian Evidence Act.;