Mangal Ram Kamar v. State Of Chhattisgarh Through Police Station Magarlod, District

crowbar (sabbal). On the basis of the information received, First Information Report was registered at Police Station Magarlod as Crime No. 236/2019 for offence punishable under Section 302 of the Indian Penal Code.

#3. During the course of investigation, notices were issued to the witnesses for preparation of the inquest proceedings over the dead body of the deceased. In the presence of the witnesses, the inquest report was prepared vide Ex.P-3. The dead body was sent to the Community Health Centre, Magarlod, for postmortem, where Dr.Keerti Kumar Singh Kanwar (PW-9) conducted postmortem over the body of the deceased vide Ex.P-7A and found following injuries:- 3 “Lacerated wound over right eyebrow 3x1.5x0.5cm. Lacerated wound head behind vertex 3x1cmx.25cm. Lacerated wound just lateral to vertex left side

2.5x1cmx.25cm 2 abrasion over face right side 1.5x2.5cm & 2.5x2.5cm Bruise 2.5x2.5cm right shoulder round part & left shoulder above clavicle 5x2cm. Ecchymosis over left breast 8cmx6cmx3cm from nipple and generalised. Ecchymosis 30x25cm just over abdomen from below left breast and to the umbilicus. Lacerated wound 2.5x2.5x0.25cm right leg and Lacerated wound 2.5x2x0.25 cm in left leg.” The doctor has opined that cause of death was intracranial hemorrhage (posterior cerebral antery). Mode of death was cerebral asphyxia with cardio respiratory failure. Death was homicidal in nature. Spot map of the place of occurrence was prepared vide Ex.P-17. The memorandum statement of the accused was recorded in the presence of witnesses vide Ex.P-4. Pursuant to the memorandum statement, one iron crowbar (sabbal) and a half-sleeved shirt produced by the accused were seized vide seizure memo Ex.P-6. The accused was arrested and an arrest memo was prepared.

#4. Blood-stained soil and plain soil were seized from the place of occurrence vide Ex.P-18. The articles seized in the case were sent to the Forensic Science Laboratory, Raipur, through the 4 Superintendent of Police, Dhamtari, vide letter Ex.P-20, and the FSL report was thereafter received. Upon completion of the investigation, the final report/charge-sheet was submitted before the Court of the Judicial Magistrate First Class, Kurud, who in turn, committed the case to the Court of Sessions, Dhamtari.

#5. In support of its case, the prosecution examined the following 18 witnesses: Phoolsingh (PW-1), Ganesh Netam (PW-2), Manglu Ram Kamar (PW-3), Parmeshwar (PW-4), Kamal Singh (PW-5), Ganraj (PW-6), Trilochan Shrimali (PW-7), Brahma (PW-8), Dr. Keerti Kumar Singh Kanwar (PW-9), Bhukhau Kumar (PW-10), Smt. Savita (PW-11), Patwari Harish Sinha (PW-12), Rajobai (PW-13), Dileshwar Kujur (PW-14), Constable Gandhi Ram Sonkar (PW-15), Constable Bhagwat Ram Dhruv (PW-16), Constable Sevakram Rangari (PW-17), and Inspector Santosh Jain (PW-18).

#6. Statement of the accused/appellant was recorded under Section 313 of the CrPC in which he denied guilt. However, the appellant- accused examined none in his defence nor any document has been exhibited.

#7. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 20.04.2022, convicted the appellant for offence under Section 302 of the IPC and sentenced as mentioned in opening paragraph of this 5 judgment, against which, this criminal appeal has been preferred by the appellant herein.

#8. Learned counsel for the appellant submits that the impugned judgment of conviction passed by the learned Trial Court is illegal, perverse and contrary to the evidence available on record. It is contended that the conviction rests primarily upon the testimony of PW-2 (Ganesh Netam), who lodged the FIR on the basis of an alleged extra-judicial confession made by the appellant. According to learned counsel, the said extra-judicial confession is not reliable and has not been corroborated by any independent or convincing evidence. Learned counsel further submits that there are material contradictions and omissions in the statements of PW-2, PW-3 and other prosecution witnesses. PW-3 (Mangalu Ram Kamar) and PW-1 (Phoolsingh), according to the defence, have not supported the prosecution case and have merely stated that they received information regarding the death of the deceased without having any personal knowledge of the incident. Similarly, PW-4 (Parmeshwar) and PW-6 (Ganraj) are not eyewitnesses and have stated that they came to know about the incident from PW-2 (Ganesh Netam). Their evidence also suffers from material omissions and contradictions.

#9. It is further submitted that the prosecution has failed to establish any motive or intention on the part of the appellant to commit the murder. The incident allegedly occurred during the night and morning hours following a quarrel between the appellant and the 6 deceased. Learned counsel submits that, even assuming that the appellant assaulted the deceased during the quarrel, the circumstances do not establish the requisite intention or knowledge to constitute an offence under Section 302 of the IPC. Learned counsel also submits that the medical evidence merely establishes that the deceased sustained a grievous injury caused by a crowbar (tabbal), but the medical evidence by itself does not establish that the appellant caused the said injury. Further, according to the FSL report, no bloodstains were found on the shirt of the appellant. It is argued that the prosecution has also failed to establish that the blood allegedly found on the articles seized pursuant to the memorandum of the appellant was human blood. Therefore, the alleged recovery cannot be treated as a reliable incriminating circumstance under Section 27 of the Indian Evidence Act. It is further contended that there is no eyewitness to the occurrence and the prosecution has failed to establish the chain of circumstantial evidence connecting the appellant with the commission of the offence. There is no cogent, reliable or legally admissible evidence showing the participation of the appellant in the alleged murder. The evidence relied upon by the prosecution is weak, inconsistent and insufficient to sustain a conviction for an offence punishable under Section 302 of the IPC. Learned counsel lastly submits that the prosecution has failed to prove its case beyond reasonable doubt. The appellant is therefore entitled to the benefit of doubt, and the conviction and sentence imposed 7 by the learned Trial Court deserve to be set aside. Accordingly, learned counsel prays that the appeal be allowed and the appellant be acquitted of the charge under Section 302 of the IPC.

#10. Per contra, learned Government Advocate appearing for the respondent/State, while opposing the submissions made by learned counsel for the appellant, submits that the learned Trial Court has rightly appreciated the evidence available on record and has recorded a well-reasoned finding of guilt against the appellant. The prosecution has proved the death of the deceased to be homicidal and has established the circumstances connecting the appellant with the commission of the offence. It is further submitted that the testimony of PW-2 (Ganesh Netam), who lodged the FIR and deposed regarding the extra-judicial confession made by the appellant, is trustworthy and is duly corroborated by the surrounding circumstances and other evidence on record. Minor omissions or contradictions in the testimony of other witnesses do not discredit the prosecution case as a whole.

#11. Learned Government Advocate further submits that the medical evidence establishes that the deceased sustained a fatal injury caused by a crowbar (tabbal) and recovery of the weapon pursuant to the memorandum of the appellant constitutes a relevant incriminating circumstance under Section 27 of the Indian Evidence Act. The absence of bloodstains on the appellant's shirt or any deficiency in the FSL evidence does not by itself demolish 8 the prosecution case when the other circumstances are considered cumulatively. It is also submitted that proof of motive is not indispensable where the prosecution otherwise establishes the guilt of the accused through reliable evidence and circumstances. The fact that there is no eyewitness to the occurrence is also not fatal, as a conviction can be based upon circumstantial evidence if the chain of circumstances is complete. Accordingly, learned Government Advocate submits that the appellant has failed to demonstrate any material illegality, perversity or misappreciation of evidence in the impugned judgment. The prosecution has proved the charge under Section 302 of the IPC beyond reasonable doubt. Therefore, the appeal deserves to be dismissed and the conviction and sentence imposed by the learned Trial Court deserve to be affirmed.

#12. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection.

#13. The question for consideration is whether the appellant is the author of the crime, which the trial Court has answered in affirmative relying upon the circumstantial evidence available on record. The trial Court has convicted the appellant with the aid of Section 106 of the Indian Evidence Act holding that it is house murder, which the appellant was required to offer explanation in his statement under Section 313 of the CrPC, which he has failed to offer and consequently, finding other circumstance established, 9 proceeded to convict him for offence under Section 302 of the IPC.

#14. Section 106 of the Indian Evidence Act, 1872, states as under: - “106. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

#15. The law regarding under Section 106 of the Indian Evidence Act, 1872 is well settled. The unnatural death of Indrani Sahu took place in the house of the appellant.

#16. As per the requirement of Section 106 of the Indian Evidence Act, the accused was required to give plausible and convincing explanation about the circumstances, in which, the deceased was found dead in his/her house. Where an offence like murder is committed inside the 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. The burden would be of a comparatively lighter character.

#17. In view of Section 106 of the Indian Evidence Act, 1872, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how crime was committed. The inmates of the house cannot keep away by simply keeping quite and offering no explanation on the supposed premise that the burden 10 to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer any explanation.

#18. In the matter of Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681 the Supreme Court whilst applying provisions of Section 106 of the Indian Evidence Act, observed in para 14 reads as under: “14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. 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. 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. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: 11 (b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."

#19. On the interpretation of Section 106 of the Indian Evidence Act, 1872 in the matter of Shambhu Nath Mehra v. State of Ajmer reported in AIR 1956 SC 404 in paragraph 9 it was observed by the Supreme Court thus: "9. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, 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. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not."

#20. In the matter of State of West Bengal v. Mir Mohammad Omar and others reported in (2000) 8 SCC 382, the Supreme Court has observed in paras 31 to 33 as under: “31. The prestine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule nor would it 12 impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty.

#32. In this case, when the prosecution succeeded in establishing the afore narrated circumstances, the Court has to presume the existence of certain facts. Presumption is a course recognized by the law for the court to rely on in conditions such as this.

#33. 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. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”

#21. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval in the matter of Nagendra Sah v. State of Bihar reported in 2021 10 SCC 725 in which it has been held by their Lordships of the Supreme Court as under: “22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in 13 establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.

#23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.”

#22. Ganesh Netam (PW-2) (son of the deceased and the appellant) in para 2 of his deposition has stated that the incident occurred approximately three months ago. His mother and father were arguing and fighting and he was trying to break them up. At that very moment, accused Mangal struck his mother, Sukhbati, with a crowbar. Sukhbati suffered injuries all over the body. She died after being hit with crowbar by his father, Mangal. In para 3 of his deposition, he stated that he do not know why his father Mangal murdered his mother. After his mother’s death, he went to his aunt Rajobai and uncle Phulsingh’s house in his village to call them. His uncle and aunt then came. When his uncle and aunt arrived, his mother was lying dead in the shade. Some villagers had come at the same time. When the elders of the village asked, his father 14 Mangal told them that he had assaulted his wife Sukhbati with a browbar, by which she died.

#23. It is to be remembered here that homicidal nature of death need not always be proved through direct evidence. It has to be inferred from the circumstances and the nature of injuries noticed on the dead body. The instant case is about the death of a wife committed by the husband within four walls of the house. When the assailant is the husband, it is difficult indeed to get direct evidence on the nature of injuries. It is thus concluded that the deceased died homicidal nature of death. Considering the nature of injuries, which the deceased was found, we are of the considered opinion that death of the deceased was homicidal in nature. It is held accordingly.

#24. In the present case, the deceased was found dead in her house and at that time, only the appellant and the deceased were present in the house and as per the provision of Section 106 of the Evidence Act, the burden to prove that the appellant was not present in the house at the time of incident and he was present elsewhere is on the appellant, which he admittedly failed to prove in his statement under Section 313 of the CrPC.

#25. Taking into consideration that the burden of proving a plea specially set up by the appellant which may absolve him from criminal liability, certainly lies upon him and he has not offered any plausible explanation, further taking into consideration that the 15 appellant was required to explain as to how the deceased suffered such injuries, as the dead body of the deceased was found lying inside the house of the appellant, which he has admittedly not explained in his statement under Section 313 of the CrP, the material collected by the prosecution and evidence of Ganesh Netam (PW-2), we are of the considered opinion that the above chain of circumstances is complete and leads only to one conclusion that it was the accused/appellant who caused death of the deceased. The view taken by the learned trial Court that the appellant is the author of the crime is a pure finding of fact based on evidence available on record. We hereby affirm that finding.

#26. In the result, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. The conviction and sentence as awarded by the trial court to the appellant is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed.

#27. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court.

#28. The Registry is directed to transmit the certified copy of this judgment along with the record to the trial Court concerned for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, to serve the same on the 16 appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Chief Justice Judge Bablu