Pardeshi Kujur v. State of Chhattisgarh

to which FIR vide Ex.P/16 at 09.40 hrs. was registered. Merg intimation vide Ex.P/17 was recorded and information was also reduced in writing in Roj Namcha Sanha. Notice was issued to the pancha witnesses vide Ex.P/9 and inquest was conducted vide Ex.P/10. Dead body was sent for postmortem vide Ex.P/1A and the same was conducted by Dr. Dhanwantari Prasad Thakur (PW/1) along with his assistant doctors and its report is Ex.P/1. Site plan was prepared vide Ex.P/8. The appellant was taken into custody and his memorandum statement was recorded vide Ex.P/6 and on his instance two sarees, one rope and one axe were seized vide Ex.P/7. The statement of the witnesses was recorded and appellant was arrested vide Ex.P/19. After completion of the investigation, charge-sheet was filed before the Judicial Magistrate First Class, Durg and same was committed to the Sessions Court, Durg for hearing and disposal in accordance with law.

The learned trial Court framed charge for the offence punishable under Section 302 of the IPC on 04.03.2016. The appellant abjured the charge and pleaded innocence. The prosecution examined 11 witnesses and exhibited 25 documents and other articles in support of its case. The statement of the accused/appellant was recorded under Section 313 of the Cr.P.C.

The learned trial Court after appreciation of oral and documentary evidence convicted the present appellant relying upon the extra-judicial confession allegedly made by the appellant before Cheduram Verma Cr.A. No.312 of 2015 (PW/3) and Devendra Kumar Chandel (PW/4) and secondly, the dead body was found in the house, where the appellant and the deceased were staying.

Learned counsel for the appellant would submit that there is no direct evidence against the present appellant, the conviction is recorded on the basis of circumstantial evidence, chain of the circumstances is not complete, the extra judicial confession is a weak type of the evidence and the prosecution has not made out prima facie case against the appellant, therefore, burden of proof would not lie upon the appellant/accused. He would further submit that appellant is entitled for acquittal looking to the facts and circumstances of the case.

On the other hand, learned State counsel would oppose the submissions advanced on behalf of the appellant herein. He would submit that the death of the deceased is homicidal in nature and the appellant caused death of his wife by strangulation. He would further submit that the appellant himself confessed his guilt before the police, though it is not admissible but the appellant was under obligation to explain as to how his wife’s dead body was found in his house. As such, with the aid of Section 106 of Indian Evidence Act, the appellant was rightly convicted for the offence punishable under Section 302 of the IPC.

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

Now, the following two questions arise for consideration :-

Whether the death of the deceased was homicidal in nature? Cr.A. No.312 of 2015

If yes, whether the appellant herein is the author of the crime in question? Re. Reference to Question No.1:

The learned trial Court has recorded the finding in para No.13 of the judgment to the effect that the death of the deceased – Renuka Thakur was homicidal in nature and same has been recorded on the basis of evidence of Dr. Dhanwantari Prasad Thakur (PW/1) and his report vide Ex.P/1. The finding recorded by the learned trial Court is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding, even otherwise, same has not been seriously disputed by the appellant, as such, the death of the deceased was homicidal in nature. Re. Reference to Question No.2 :

The aforesaid question has been answered by the trial Court in favour of the prosecution by holding the appellant guilty, relying upon the statements of Cheduram Verma (PW/3) and Devendra Kumar Chandel (PW/4) before whom the extra-judicial confession was made by the present appellant and further relying upon the fact that the appellant after strangulating the deceased, went to the Police Station and informed the police, and further, in the house only two persons were staying i.e. the present appellant and the deceased and no explanation has been given by the appellant in this regard. Chheduram Verma (PW/ 3) has stated in his evidence that he had met the appellant in the market, where the appellant narrated the fact that he committed murder of his wife - Renuka Thakur and he is going to surrender in the Police Station. Devendra Kumar Chandel (PW/4) in para -5 of his evidence stated that the appellant made a statement in presence of police that he committed murder of his wife by throttling. Cr.A. No.312 of 2015

The extra judicial confession is a weak type of evidence and on the basis of the same, conviction cannot be recorded. In Kusal Toppo v. State of Jharkhand1 it has been observed by their lordships- “22. Furthermore, in Sahadevan v. State of T.N. [Sahadevan v. State of T.N., (2012) 6 SCC 403 : (2012) 3 SCC (Cri) 146] , this Court culled out cer- tain principles regarding the reliability of an extra-ju- dicial confession, which have also been relied upon in Jagroop Singh v. State of Punjab [Jagroop Singh v. State of Punjab, (2012) 11 SCC 768 : (2013) 1 SCC (Cri) 1136], Tejinder Singh v. State of Punjab [Tejinder Singh v. State of Punjab, (2013) 12 SCC 503 : (2014) 4 SCC (Cri) 400], and Vijay Shankar v. State of Haryana [Vijay Shankar v. State of Haryana, (2015) 12 SCC 644 : (2016) 1 SCC (Cri) 151] . The principles as stated in Sahadevan [Sa- hadevan v. State of T.N., (2012) 6 SCC 403 : (2012) 3 SCC (Cri) 146] are reproduced below : (SCC pp. 412-13, para 16)

16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judi- cial confession an admissible piece of evidence ca- pable of forming the basis of conviction of an ac- cused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the ac- cused: (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further cor- roborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.

1 (2019) 13 SCC 676 Cr.A. No.312 of 2015

Also

discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case

(See: Mani v. State of Tamil Nadu 2 ).

The next piece of evidence is related to presumption under Section 106 of the Indian Evidence Act, which reads thus:- “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.”

This provision states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused person was in such a position that he could have special knowledge of the fact concerned.

In the matter of Shambhu Nath Mehra v. The State of Ajmer3, their Lordships of the Supreme Court have held that the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act 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 2 (2009) 17 SCC 273 3 AIR 1956 SC 404 Cr.A. No.312 of 2015 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 Supreme Court while considering the word “especially” employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J., observed as under: -

11.… 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. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B).

Their Lordships further held that Section 106 of the Evidence Act cannot be used to undermine the well-established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts.

The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval 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: - “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 4 (2021) 10 SCC 725 Cr.A. No.312 of 2015 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.”

Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab5, while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him.

The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar6 and it has been held that burden of proving the case against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence.