Nafr High Court
Case Details
1 CRA No. 443 of 2019 ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.02.20 17:25:53 +0530 2025:CGHC:8580-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 443 of 2019 sing out of judgment dated 04.02.2019 passed in th Additional Sessions (Ari Sessions Trial No.52/2018 by the 5 ) Judge, Raigarh, Chhattisgarh. Banau @ Banmali Uraon S/o Sammat Uroan, aged about 45 years, R/o Kasdol, Police Station Tamnar, District Raigarh, Chhattisgarh. versus ... Appellant State of Chhattisgarh, through the Station House Officer, Police Station Chakradhar Nagar, District Raigarh Chhattisgarh. For Appellant ... Respondent :- Mr. Kumar Sudhir Bajpai, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee.
Legal Reasoning
prima facie case ” (foundational facts) ii. What is “ in the context of Section 106 of the Evidence Act? 49. The Latin expression prima facie means “at first sight”, “at first view”, or “based on first impression”. According to Webster’s Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the case or 9 CRA No. 443 of 2019 charges against the defendant. If they cannot present prima facie evidence, the initial claim may be dismissed without any need for a response by other parties. 50. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding guilt of the accused. 51. The presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. 52. To explain what constitutes a prima facie case to make Section 106 of the Evidence Act applicable, we should refer to the decision of this Court in State of W.B. v. Mir Mohammad and ors. (2000) 8 SCC 382, wherein this Court has observed in paras 36 and 37 respectively as under: “36. In this context we may profitably utilize the legal principle embodied in Section 106 of the Evidence Act which reads as follows: “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.” (Emphasis supplied) 53. We should also look into the decision of this Court in the case of Ram Gulam Chaudhary & Ors. v. State of Bihar, (2001) 8 SCC 311, wherein this Court made the following observations in paragraph 24 as under: “24. Even otherwise, in our view, this is a case where Section 106 of the Evidence Act would 10 CRA No. 443 of 2019 apply. Krishnanand Chaudhary was brutally assaulted and then a chhura-blow was given on the chest. Thus chhura-blow was given after Bijoy Chaudhary had said “he is still alive and should be killed”. The appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the appellants. The appellants have given no explanation as to what they did after they took away the body. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the court, there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. We, therefore, see no substance in this submission of Mr. Mishra.” (Emphasis supplied) 54. Cases are frequently coming before the courts where the husband, due to strained marital relations and doubt as regards the character, has gone to the extent of killing his wife. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, like in the case at hand, even if he is a witness of the crime, would come forward to depose against another family member. 55. If an offence takes place inside the four walls of a house and in such circumstances where the accused has all the opportunity to plan and commit the offence at a time and in the circumstances of his choice, it will be extremely difficult for the 11 CRA No. 443 of 2019 prosecution to lead direct evidence to establish the guilt of the accused. It is to resolve such a situation that Section 106 of the Evidence Act exists in the statute book. In the case of Trimukh Maroti Kirkan v. State of Maharashtra2, this Court observed that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. The Court proceeded to observe that a Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character, which is almost impossible to be led, or at any rate, extremely difficult to be led. The duty on the prosecution is to lead such evidence, which it is capable of leading, having regard to the facts and circumstances of the case.” 15. Coming to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the above-stated judgment, it is quite vivid from the statement of Sundar Lal (PW-5), owner of the house in question, that the appellant and the deceased both were used to live in the house in question prior five to six months of the incident and on the date and time of the offence the appellant and the deceased only two inmates were in the house in question. Furthermore, the merg intimation (Ex.P/12) reported by the appellant himself, though it is not a substantive piece of evidence, but the appellant in the said merg intimation has stated that on the date and time offence he was present along with the 2 (2006) 10 SCC 681 12 CRA No. 443 of 2019 deceased in the house in quesstion. Moreover, considering the oral and documentary evidence available on record, the finding recorded by the trial Court that it is the appellant who assaulted the deceased by which she suffered grievous injuries and also the trial Court has rightly held that Section 106 of the IEA would be invokable to base the conviction of the appellant as the appellant has failed to explain in his statement recorded under Section 313 of the CrPC that as to how and under what circumstances his wife died are correct finding of fact based on evidence available on record and, as such, we hereby affirm the said finding recorded by the trial Court. 16. Now, the question for consideration is whether the conviction of the appellant for offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 Part-I or Part-II of IPC as contended by learned counsel for the appellant? 17. The Supreme Court in the matter of Arjun v. State of Chhattisgarh3 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :- 3 (2017) 3 SCC 247 13 CRA No. 443 of 2019 “20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under :(SCC p. 220, para 7) “7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.” 21. Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9) “9. …. '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 14 CRA No. 443 of 2019 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”.” 18. In the matter of Arjun (supra), the Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II IPC. 19. Bearing in mind the principles of law laid down by their Lordships of the Supreme Court in above-stated judgments, it is quite vivid that there was no premeditation on the part of the appellant to cause death of his wife Bardani Uraon (deceased), but considering the medical evidence proved by Dr. Prakash Chetvani (PW-7), contusion was found on the 15 CRA No. 443 of 2019 4th rib of left side, fracture was found on the left ribs (3 rd and 7th) and on the right side 6th to 8th ribs were found fractured due to which lungs got ruptured and livers were also found ruptured by which she died. As such, considering the nature of injuries which have occurred on the body of the deceased and further considering the medical evidence available on the record, it is quite vivid that appellant must have had knowledge that such injury inflicted by him on the body of the deceased would likely to cause her death, as such, this is a case in which the conviction of the appellant for offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 Part-II of the IPC. 20. In view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of his wife Bardani Uraon (deceased) and the injuries caused by him were not sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 Part-II of IPC and sentenced to undergo 16 CRA No. 443 of 2019 rigorous imprisonment for 10 years. However, the fine amount imposed by the learned trial Court shall remain intact. So far as the conviction for offence under Section 201 of the IPC is well merited, therefore, conviction and sentence along with default stipulations imposed by the learned trial Court for the aforesaid offences are not interfered with. 21. This criminal appeal is partly allowed. 22. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- (Sanjay K. Agrawal) Judge Sd/- (Sanjay Kumar Jaiswal) Judge Ankit
Arguments
For Respondent-State :- Mr. Arvind Dubey, Government Advocate. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Judgment Sanjay Kumar Jaiswal On Board (19.02.2025) Sanjay K. Agrawal, J 2 CRA No. 443 of 2019 1. This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused is directed against the impugned judgment of conviction and order of sentence dated 04.02.2019 passed by the 5th Additional Sessions Judge, Raigarh, Chhattisgarh in Sessions Trial No. 52/2018 by which appellant herein has been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer imprisonment for life with fine of ₹ 100/-; in default of payment of fine to undergo additional rigorous imprisonment for one month and also convicted for offence under Section 201 of the IPC and sentenced to undergo rigorous imprisonment seven years with fine of ₹ 100/-; in default of payment of fine to undergo additional rigorous imprisonment for one month. Both the sentences were directed to run concurrently. 2. Case of the prosecution in, nutshell, is that on 03.03.2018 between 1:00 am to 7:00 am, at village Junwani, Police Station Chakradhar Nagar, District Raigarh, Chhattisgarh, in the tenanted house of Sundar Lal (PW-5), the appellant assaulted his wife Bardani Uraon by wooden stick by which she suffered greivous injuries and also made her suffer with burn injuries and thereafter to screen himself from the legal punishment, he lodged the false merg intimation that his 3 CRA No. 443 of 2019 wife was died on account of consuming excess liquor and thereby committed the aforesaid offences. Merg intimation was registered vide Ex.P/12. FIR was registered vide Ex.P/17. Crime detail for was prepared vide Ex.P/13. Inquest proceedings (Ex.P/3) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/10) proved by Dr. Prakash Chetvani (PW-7) cause of death was internal injuries cause to haemorrhage followed by haemorrhagic shock and nature was homicidal. Pursunat to memorandum statement of the appellant (Ex.P/4) wooden stick was seized vide Ex.P/5. As per query report (Ex.P/11) proved by Dr. Prakash Chetvani (PW-7) the injuries which were caused over the body of the deceased could be caused by the wooden stick which was seized pursuant to memorandum statement of the appellant. 3. After due investigation, appellant herein was charge- sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 4 CRA No. 443 of 2019 4. In order to bring home the offence, prosecution has examined as many as 10 witnesses and exhibited 18 documents and defence in support of its case has neither examined any witness nor exhibited any document. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. 6. Mr. Sudhir Kumar Bajpai, learned counsel for the appellant, submit that appellant has falsely been implicated in crime in question and he has been convicted by recording a finding which is perverse to the record. He also submits that the trial Court has wrongly invoked Section 106 of the Indian Evidence Act, 1872 (for brevity the ‘IEA’) to base the conviction of the appellant. In alternative, he submits that at best, the conviction for offence under Section 304 Part-I or Part-II would be made out as Bardani Uraon was died on account of fracture of ribs by which lungs were ruptured and, as such, there was no intention 5 CRA No. 443 of 2019 on the part of the appellant to cause death of his wife. He further submits that the appellant is in jail since 26.04.2018 and, as such, it is a fit case where conviction of the appellant for offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 Part-I or Part-II of IPC. Thus, the present appeal deserves to be allowed in full or in part. 7. On the other hand, Mr. Arvind Dubey, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offences beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offences by invoking Section 106 of the IEA. He also submits that it is not the case of alteration of offence from under Section 302 of IPC to Section 304 Part-I or Part-II of the IPC where the conviction of the appellant can be modified for lesser offence, therefore, the instant appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 6 CRA No. 443 of 2019 9. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/10) proved by Dr. Prakash Chetvani (PW-7), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature. 10. Now, the question for consideration would be whether the appellant has assaulted the deceased? 11. The case of the prosecution is not based on the direct evidence it is based on the circumstantial evidence and basically the trial Court has invoked Section 106 of the IEA to base the conviction of the appellant as the appellant was the only person who stayed along with his wife in the house in question, therefore, he required to explain in his statement recorded under Section 313 of the CrPC as to how and under what circumstances his wife died which he failed to explain. 7 CRA No. 443 of 2019 12. Now, the question would be whether the Section 106 of the Evidence Act has rightly been made applicable by the trial Court while convicting the appellant for offence under Section 302 of the IPC ? 13. At this stage, it would be appropriate to notice the relevant judgments with regard to Section 106 of the IEA. 14. In the matter of Anees v. The State Govt. of NCT1, their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the IEA, have held in paragraphs 47 to 55 as under:- “47. But Section 106 of the Evidence Act has no application to cases where the fact in question, having regard to its nature, is such as to be capable of being known not only to the accused but also to others, if they happened to be present when it took place. The intention underlying the act or conduct of any individual is seldom a matter which can be conclusively established; it is indeed only known to the person in whose mind the intention is conceived. Therefore, if the prosecution has established that the character and circumstance of an act suggest that it was done with a particular intention, then under illustration (a) to this section, it may be assumed that he had that intention, unless he proves the contrary. 48. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the 1 2024 INSC 368 [Criminal Appeal No.437 of 2015, decided on 30.05.2024] 8 CRA No. 443 of 2019 burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence, which if believed by the court, would convince them of the accused's guilt beyond a reasonable doubt, the accused, if in a position, should go forward with counter-vailing evidence, if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might arise therefrom. Although not legally required to produce evidence on his own behalf, the accused may, therefore, as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution [See: Balvir Singh v. State of Uttarakhand, 2023 SCC OnLine 1261]