Nafr High Court
Case Details
1 CRA No. 1111 of 2019 ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.01.17 10:54:50 +0530 2025:CGHC:853-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1111 of 2019 (Ari sing out of judgment dated 23.04.2019 passed in Sessions Trial No.08/2017 by the Sessions Judge, ) Kondagaon, District Kondagaon, Chhattisgarh. 1. Prasannajeet Vishwas S/o Sudhir Vishwas, aged about 23 years, R/o Purviborgaon Bazarpara, Police Station Farasgaon, District Kondgaon Chhattisgarh. 2. Sudhir Vishwas S/o Late Gopal Vishwas, aged about 49 years, R/o Purviborgaon Bazarpara, Police Station Farasgaon, District Kondgaon Chhattisgarh. 3. Smt. Laxmi Vishwas W/o Sudhir Vishwas, aged about 45 years, R/o Purviborgaon Bazarpara, Police Station Farasgaon, District Kondgaon Chhattisgarh. versus ... Appellants State of Chhattisgarh, through the Station House Officer, Police Station Farasgaon, District Kondagaon, Chhattisgarh. ... Respondent For Appellants :- Mr. Sanjeev Kumar Sahu, Advocate. For Respondent :- Mr. Rahul Tamaskar, Government Advocate & Mr. Soumya Rai, Panel Lawyer. 2 CRA No. 1111 of 2019 Division Bench
Legal Reasoning
prima facie case ii. What is “ ” (foundational facts) 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 11 CRA No. 1111 of 2019 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 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 12 CRA No. 1111 of 2019 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 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. 13 CRA No. 1111 of 2019 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 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 Maharashtra3, 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. Recently in the matter of Nagendra Sah v. State of Bihar4 in which it has been held by their Lordships of the Supreme Court as under: - “19. In this case, as mentioned above, neither the prosecution witnesses have deposed to that effect nor any other material has been placed on record to show that the relationship between the appellant and the deceased was strained in any manner. Moreover, the appellant was not the only person residing in the house where the incident took place and it is brought on record that the parents of the appellant were also present on the date of the incident in the house. The fact that other members of the family of the appellant were present shows that there could be another hypothesis which cannot be altogether excluded. 3 4 (2006) 10 SCC 681 (2021) 10 SCC 725 14 CRA No. 1111 of 2019 Therefore, it can be said that the facts established do not rule out the existence of any other hypothesis. The facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant. *** *** *** *** *** 22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in 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.” 16. 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 judgments, it is quite vivid that except the appellants, Prahlad Vishwas, brother of A-1, also used to live in the same premises in which the dead body of Bharti Vishwas (deceased) was found and near the place of the incident where the dead body of Bharti 15 CRA No. 1111 of 2019 Vishwas (deceased) was found, room of Prahlad Vishwas, brother of A-1 has been shown in crime detail form (Ex.P/12) proved by Rukmani Mandavi (PW-13). Even otherwise, the trial Court in paragraph No.29 of its judgment has clearly recorded a finding that A-1 and the deceased used to live separately in the same premises and used to cook food separately and also A-2 & A-3 used to live and cook food separately and this finding has not been questioned on behalf of the State. Further, the motive of the offence has also not been found established by the trial Court in paragraph No.62 of its judgment. Pursuant to memorandum statement of the appellant (Ex.P/6) nylon rope was seized vide Ex.P/7, but the said nylon rope was not subjected to forensic examination to prove that the seized nylon rope was stained with human blood and used in the crime in question. However, Investigating Officer Sitaram Dhruw (PW-17) in his statement before the Court has stated that the said nylon rope is easily available in the market. Even otherwise, it is well settled law that the disclosure alone would not automatically lead to conclusion that offence was also committed by the accused and, therefore, the burden lies on prosecution to establish a close link between the discovery of material object and its 16 CRA No. 1111 of 2019 use in commission of offence. [See: Mustkeem alias Sirajudeen v State of Rajasthan 5 ]. 17. As such, in light of aforesaid infirmities, though the learned trial Court has held the death of the deceased to be homicidal in nature and the death of the deceased has taken place in the house of the appellants, but the prosecution has clearly failed to establish that the appellants and the deceased were the only inmates who were present in the house at the time of commission of the offence and, therefore, in the light of decision of the Supreme Court in the matter of Anees (supra) and Nagendra Sah (supra), we are of the considered opinion that the prosecution has failed to prove prima facie case for invoking Section 106 of the IEA to base the conviction of the appellants. 18. Furthermore, as per the prosecution A-1 was residing with his wife Bharti Vishwas (deceased) separately, but it is pertinent to mention here that A-1 has convicted for offence under Section 302 with the aid of Section 34 of the IPC and no independent charge of offence 302 of the IPC against A-1 has been framed which is required in light of the decision of 5 (2011) 11 SCC 724 17 CRA No. 1111 of 2019 the Supreme Court in the matter of Sukhram (supra) and the principle of law laid down in Sukhram (supra) has been recently followed with approval by the Supreme Court in the matter of Rajesh Tandi v. State of Chhattisgarh 6 decided on 12th November, 2024, in which their Lordships of the Supreme Court have held as under:- “In this regard, the judgment of Sukhram (supra) was relied upon. Paragraph 10 of the said judgment reads as under:- “10. There is another aspect of the matter which has also escaped the notice of the High Court when it sustained the conviction of the appellant under Section 302 read with Section 34 and Section 436 read with Section 34 I.P.C. while acquitting accused Gokul of those charges. Though the accused Gokul and the appellant were individually charged under Sections 302 and 436 I.P.C., they were convicted only under the alternative charges under Section 302 read with Section 34 and Section 436 read with Section 34 I.P.C. by the Sessions Judge. Consequently, the appellant's convictions can be sustained only if the High Court had sustained the convictions awarded to accused Gokul also. Inasmuch as the High Court has given the benefit of doubt to accused Gokul and acquitted him, it follows that the appellant's convictions for the two substantive offences read with Section 34 I.P.C. cannot be sustained because this is a case where the co- accused is a named person and he has been acquitted and by reason of it the appellant cannot be held to have acted conjointly with anyone in the commission of the offences. This position of law is well settled by this Court and 6 SLP (CRL.) No.7609/2024 18 CRA No. 1111 of 2019 we may only refer to a few decisions in this behalf vide Prabhu Babaji v. State of Bombay, Krishna Govind Patil v. State of Maharashtra and Baul v. State of U.P..” Applying the aforesaid judgment to the present case, we find that when the substantive offence under Section 302 read with Section 34 IPC cannot be sustained as against the co-accused, it could not have been sustained only as against accused No.1, the appellant herein. This is because the offence under Section 302 IPC was not attributed to the appellant individually and independent of other co- accused. The High Court has lost sight of the said fact. It is also necessary to note that the State has not filed any appeal as against the acquittal of accused Nos.2 to 4. That apart, on perusal of the deposition of PW- 9, it is noted that the appellant herein had hit her ear with his hand but she also stated that one of the accused was holding Gupti in his hand but she could not tell which accused had held which weapon. Therefore, there is no concrete evidence attributing any overt act, particularly against the appellant herein, as already noted there is no vis-a-vis the independent substantive charge appellant herein under Section 302 of the IPC. It is only along with other accused i.e. Section 302 read with Section 34 IPC. In the circumstances, we find that the High Court was not right in dismissing the appeal filed by the appellant herein and convicting him under Section 302 read with Section 34 IPC. Therefore, the appellant is also acquitted of the said charges for the offences against him.” 19. In view of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the matter of Rajesh Tandi (supra), it is quite vivid that there is no 19 CRA No. 1111 of 2019 substantive independent charge framed against Prasannajeet Vishwas (A-1) and the only allegation against A-1 is that he along with other two appellants namely Sudhir Vishwas (A-2) and Laxmi Vishwas (A-3), in furtherance of their common intention, strangulated his wife (deceased) with nylon rope which was seized pursuant to his memorandum statement, but we have already held that the said nylon rope was not subjected to forensic examination to prove that it was stained with human blood and used in the crime in question and except that, no other incriminating circumstances have been proved by the prosecution. Even otherwise, in the foregoing paragraphs, we have already held that the prosecution has failed to prove its case beyond reasonable doubt and the trial Court has also erred in invoking Section 106 of the IEA to base the conviction of the appellants and, as such, the appellants (A-1, A-2 & A-3) are entitled for acquittal on the principles of basis of benefit of doubt. Conclusion:- 20. In view of the aforesaid discussion and analysis, we are of the considered view that the prosecution has failed to discharge its primary burden of proving its case, therefore, 20 CRA No. 1111 of 2019 the conviction of the appellants for offence under Sections 302 read with Section 34 and 201 read with the Section 34 of the IPC as well as their respective sentences are hereby set aside and they are acquitted of the said charges on the basis of principles of benefit of doubt. Prasannajeet Vishwas (A-1) is reported to be in jail since 28.10.2016. Accordingly, he be released from jail forthwith, if not required any other matter. Sudhir Vishwas (A-2) & Smt. Laxmi Vishwas (A-2) are reported to be on bail, therefore, they need not surrender. However, their bail bond shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC. 21. This criminal appeal is 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 they are lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) Judge (Sanjay Kumar Jaiswal) Judge Ankit
Arguments
Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (07.01.2025) Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the sole appellants-accused persons namely Prasannajeet Vishwas (A-1), Sudhir Vishwas (A-2), father of A-1, and Laxmi Vishwas (A-3), mother of A-1, is to the legality, validity and correctness of the judgment dated 23.04.2019 passed by the Sessions Judge, Kondagaon, District Kondagaon, Chhattisgarh, in Sessions Trial No. 08/2017 by which the three appellants herein have been convicted for offence under Section 302 read with Section 34 of the IPC and sentenced thereunder to suffer imprisonment for life with fine of 100/- each; in ₹ default of payment of fine amount to undergo additional rigorous imprisonment for three months and also convicted for offence under Section 201 read with Section 34 of the IPC and sentenced to undergo rigorous imprisonment for 5 years with fine of 100/- each; in default of payment of fine ₹ amount to undergo additional rigorous imprisonment for 3 CRA No. 1111 of 2019 three months. Both the sentences were directed to run concurrently. Prosecution story:- 2. On 24.10.2016 between 9:00 pm to 11:00 pm, at Bazarpara Poorvi Borgaon, Police Station Farasgoan, the appellants (A-1, A-2 & A-3), in their house, caused the death of Bharti Vishwas (wife of A-1) by strangulation and thereafter to screen themselves from the legal punishment, hanged the body of the deceased and thereby committed the aforesaid offence. 3. Further case of the prosecution is that on 25.10.2016 A-1 reported the matter to the police that the marriage of A-1 and the deceased was solemnized prior two years from the date of incident and out of their wedlock a girl child was born. He further stated that 2-3 days prior to the incident the deceased demanded 2000/- from him to purchase ₹ clothes for their child which the appellant, due to non- availability of money, did not give her and on the date of offence i.e. 24.10.2016 at about 8:00 pm after having dinner appellant gave 1000/- to the deceased which she ₹ refused to take in anger, thereafter, he (A-1) went to sleep. 4 CRA No. 1111 of 2019 On the same day, at about 11:00 pm A-3 shouted, and after hearing the voice of A-3, A-1 woke up and his wife Bharti Vishwas (deceased), who hanged herself, thereafter, A-1 and A-2 took the dead body of the deceased down, pursuant to which merg intimation was registered vide Ex.P/14. FIR was registered vide Ex.P/14. Spot map was prepared vide Ex.P/8. Crime details form was prepared vide Ex.P/12. Wheels of investigation started running and the appellants were arrested. Inquest proceedings (Ex.P/2) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/4) proved by Dr. Lakhanlal Jurri (PW-8) cause of death was asphyxia & cerebral congestion due to strangulation throttling and homicidal in nature. Pursuant to memorandum statement of A-1 (Ex.P/6) nylon rope was seized vide Ex.P/7. Other articles were also seized. As per query report (Ex.P/5) proved by Dr. Lakhanlal Jurri (PW-8), throttling could be caused by the said nylon rope and also ligature mark could be caused by the said nylon rope. 4. After due investigation, appellants herein were charge- sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance 5 CRA No. 1111 of 2019 with law. The appellants / accused persons abjured their guilt and entered into defence. 5. In order to bring home the offence, prosecution has examined as many as 17 witnesses and exhibited 22 documents, whereas, defence, in support of its case, has examined 1 witness, but not exhibited any document. The statements of the appellants / accused persons were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. 6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offences 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. Submission of the Parties:- 7. Mr. Sanjeev Kumar Sahu, learned counsel for the appellants, would submit that the trial Court is absolutely 6 CRA No. 1111 of 2019 unjustified in invoking Section 106 of the Indian Evidence Act, 1872 (for short ‘the IEA’) for basing the conviction of appellants as in paragraph No.29 of its judgment the trial Court has clearly recorded a finding that A-1 was living separately with his wife (deceased) in the same premises in separate house and A-1 occasionally came to meet A-2 and A-3 and also they used to cook the food separately. He would also submit that on perusal of crime detail form (Ex.P/12) proved by Rukmani Mandavi (PW-13) would show that there is some distance between the house of A-1 and the house of A-2, where the A-2 used to reside with A-3 and even otherwise, Prahlad Vishwas, brother of A-1 was also staying in the same premises and, therefore, Section 106 of the IEA is not attracted at all. He would further submit that in paragraph No.36 of the judgment, the trial Court has proceeded to convict the appellant on the basis of theory of last seen together, but there is no evidence has been brought on record by the prosecution to invoke the theory of last seen together. More particularly, the trial Court itself has recorded a finding in paragraph No.62 of its judgment that the motive of offence is not established and lastly, though pursuant to memorandum statement of A-1 nylon rope was seized, but as per statement of Investigating 7 CRA No. 1111 of 2019 Officer Sitaram Dhruw (PW-17) that rope, which was seized, is easily available in the market and, even otherwise, the seized rope was not subjected to forensic test and, therefore, the alleged recovery of the rope is of no use to the prosecution. He would further submit that all the three accused persons have been implicated with aid of Section 34 of the IPC and there is no independent charge of 302 of the IPC against A-1 which is required in light of the decision of the Supreme Court in the matter of Sukhram v. State of Madhya Pradesh1 and, as such, the appellant is entitled for acquittal on the basis of benefit of doubt and the instant appeal deserves to be allowed. 8. Per contra, Mr. Rahul Tamaskar, and Mr. Somya Rai, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. They would also submit that since all the three appellants along with the deceased were residing in the same premises and the dead body of the deceased was found inside the house of appellants, the trial Court has rightly invoked Section 106 of the IEA as the death of the deceased was homicidal in nature. Furthermore, nylon rope was seized pursuant to 1 1989 Supp (1) SCC 214 8 CRA No. 1111 of 2019 memorandum statement of A-1 which was used in the commission of the offence, as such, the appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely. Discussion & Analysis :- 10. 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/4) proved by Dr. Lakhanlal Jurri (PW-8), 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. 11. Now, the question for consideration would be whether the appellants have assaulted the deceased? 12. The trial Court has invoked Section 106 of the IEA to base the conviction of the appellants as they used to live 9 CRA No. 1111 of 2019 together in the same premises in the same house and further on the evidence that pursuant to memorandum statement of the A-1 (Ex.P/6) nylon rope was seized (Ex.P/7). 13. 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 appellants for offence under Section 302 with the aid of Section 34 of the IPC ? 14. In the matter of Anees v. The State Govt. of NCT2, 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 2 2024 INSC 368 [Criminal Appeal No.437 of 2015, decided on 30.05.2024] 10 CRA No. 1111 of 2019 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 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]