Darri Para, Police Station Pasan, District Korba, Chhattisgarh v. State of Chhattisgarh, Through the District Magistrate, Korba
Case Details
Page 1 of 15 (Cr.A.No.1298/2019) SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2025.02.19 11:12:42 +0530 2025:CGHC:8184-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1298 of 2019 (Arising out of judgment dated 9-10-2018 passed by the Additional Judge, Katghora to the Court of Additional Sessions Judge, Katghora, District Korba in Sessions Trial No.34/2018) Bulchu @ Soundha, S/o Sarju Bhaina, Aged about 50 years, R/o Darri Para, Police Station Pasan, District Korba, Chhattisgarh. ... Appellant versus State of Chhattisgarh, Through the District Magistrate, Korba. ... Respondent For Appellant : Mr. A.K. Samantray and Md. Ruhul Ameen, Advocates. For Respondent/State : Mr. Vivek Mishra, Panel Lawyer. Division Bench: - Hon’ble Shri Sanjay K. Agrawal and Hon’ble Shri Sanjay Kumar Jaiswal, JJ. Judgment on Board (17/02/2025) Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction recorded and sentence awarded by the learned Additional Judge, Katghora to the Court of Additional Sessions Judge, Katghora, District Korba, by which the sole appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo Page 2 of 15 (Cr.A.No.1298/2019) imprisonment for life and further sentenced to pay a fine of ₹ 500/-, in default, to further undergo additional imprisonment for one month. 2. Case of the prosecution, in short, is that in between 12 noon of 24-1- 2018 and 9 p.m. of 25-1-2018, the appellant assaulted Bhuneshwar Kushram by wooden stick by which he suffered grevious injuries and died. Merg intimation Ex.P-1 was lodged by Rajmatiya Bai (PW-1) –
Facts
wife of the deceased, on the basis of which, FIR was registered against the appellant vide Ex.P-2. Inquest was conducted on the dead body of the deceased vide Ex.P-3. Crime details form Ex.P-4 was prepared by the Investigating Officer and spot map Ex.P-16 was prepared by the
Legal Reasoning
42. Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden of the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused. Section 106 obviously refers to cases where the guilt of 43. the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory. If in such a situation, the accused gives an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams: “All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence.” 44. To recapitulate the foregoing : What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is therefore for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all Page 7 of 15 (Cr.A.No.1298/2019) possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions. If the accused had a different intention that is a fact especially within his knowledge and which he must prove (see Professor Glanville Williams—Proof of Guilt, Ch. 7, page 127 and following) and the interesting discussion—para 527 negative averments and para 528—“require affirmative counter-evidence” at page 438 and foil, of Kenny's outlines of Criminal Law, 17th Edn. 1958. 45. But Section 106 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 by the accused but also by others if they happened to be present when it took place. From the illustrations appended to the section, it is clear that an intention not apparent from the character and circumstances of the act must be established as especially within the knowledge of the person whose act is in question and the fact that a person found travelling without a ticket was possessed of a ticket at a stage prior in point of time to his being found without one, must be especially within the knowledge of the traveler himself: see Section 106 of the Indian Evidence Act, illustrations (a) and (b). 46. 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 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 is in a position where he 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 have been rebutted. Although not legally required to produce evidence on his own behalf, the accused may Page 8 of 15 (Cr.A.No.1298/2019) 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 (Wharton's Criminal Evidence, 12th Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Leland v. State reported in 343 U.S. 790=96 L.Ed. 1302, Raffel v. U.S. reported in 271 U.S. 294=70 L.Ed. 1054. WHAT IS “PRIMA FACIE CASE” IN THE CONTEXT OF SECTION 106 OF THE EVIDENCE ACT? The Latin expression prima facie means “at first sight”, 47. “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 “evi-Ideuce 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 charges against the defendant. If they cannot present prima facie evidence, or if an opposing party introduces contradictory evidence, the initial claim may be dismissed without any need for a response by other parties. 48. 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 death.” 13. Recently, 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 Evidence Act, 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 2 2024 SCC OnLine SC 757 Page 9 of 15 (Cr.A.No.1298/2019) 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 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 SC 1261] prima facie case ii. What is “ context of Section 106 of the Evidence Act? ” (foundational facts) in the The Latin expression prima facie means “at first sight”, 49. “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 Page 10 of 15 (Cr.A.No.1298/2019) 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. Section 106 of the Evidence Act would apply to cases 50. 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. To explain what constitutes a prima facie case to make 52. Section 106 of the Evidence Act applicable, we should refer to the decision of this Court in Mir Mohammad (supra), 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 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 apply. Krishnanand Chaudhary was brutally assaulted and then a chhura-blow was given on the chest. Thus chhura-blow Page 11 of 15 (Cr.A.No.1298/2019) 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 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 (supra), 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 Page 12 of 15 (Cr.A.No.1298/2019) 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.” 14. Reverting to the facts of the present case, it is quite vivid that the trial Court has rightly held that the death of the deceased was homicidal in nature which we had also affirmed herein-above. The trial Court has also held that the dead body of the deceased was found in the house of the appellant in the courtyard which was an open place and anybody can come and go to that place very easily, in other words, the place where the dead body was found has an open access to anyone. However, the trial Court has further held that the appellant has not explained how and in what circumstances the deceased died. 15. In this regard, statement of the wife of the deceased Smt. Rajmatiya Bai (PW-1), who has lodged merg intimation Ex.P-1 and subsequent FIR Ex.P-2, may be noticed herein. In paragraph 13, she had clearly stated that the house / place where her husband's dead body was lying at Village Darripara is an open place and there was no door to that place. Similarly, Chand Sai (PW-2) – Panchayat Secretary, has stated in paragraph 3 that the dead body of deceased Bhuneshwar was found in injured condition in the house of the appellant and blood was oozing out of the body which spread on the floor. Similarly, Sukhdev Singh (PW-3) in paragraph 13 has clearly stated that the dead body of deceased Page 13 of 15 (Cr.A.No.1298/2019) Bhuneshwar was found in an open place where there was no door or window. 16. As such, finding of the trial Court that the dead body of the deceased was found in an open place where there was no door, window, etc., is well supported by the statements of Smt. Rajmatiya Bai (PW-1), Chand Sai (PW-2) and Sukhdev Singh (PW-3). However, the trial Court before invoking Section 106 of the Evidence Act ought to have clearly recorded a finding as to whether the appellant was in the house along with the deceased on the date and time of offence, but no evidence has been brought on record that immediately just prior to the date and time of offence, the appellant was present in the house with the deceased except the fact that the subject house was owned by the appellant. 17. Based on the said fact, the trial Court has proceeded to convict the appellant under Section 302 of the IPC invoking Section 106 of the Evidence Act, whereas in order to invoke Section 106 of the Evidence Act, it must be established by the prosecution beyond reasonable doubt that the appellant and the deceased both were present in the house at the relevant point of time or immediately just before the date and time of offence. It was completely missing in the present case that the appellant was also present in the house on the date and time of offence. Chances of other hypothesis of the offence cannot be ruled out. As such, the trial Court is absolutely unjustified in convicting the appellant under Section 302 of the IPC based on Section 106 of the Evidence Act. Page 14 of 15 (Cr.A.No.1298/2019) 18. So far as human blood found on the clothes of the appellant (lower) and full shirt & jacket of the deceased is concerned, these articles were seized on 25-1-2018, whereas they were received in the Regional FSL, Bilaspur only on 24-3-2018 vide acknowledgment receipt Ex.P-22 and there is no evidence on record whether they were kept in safe custody during the interregnum period i.e. from 25-1-2018 to at least till 8-3- 2018. Similarly, the weapon of offence – wooden stick was seized though pursuant to the memorandum statement of the appellant, but, from the spot as disclosed by the memorandum and seizure witnesses when it was lying on the place of occurrence. As such, recovery of wooden stick itself is doubtful and it was not seized pursuant to the memorandum statement of the appellant from the place shown / disclosed by the appellant. 19. As such, it has not been established by the prosecution that on the date of offence, the appellant and the deceased were the only two inmates of the house where the dead body of the deceased was found that too from an open place and thus, in absence of explanation, the appellant should not have been convicted. In that view of the matter, the prosecution has failed to establish that on the date and time of offence, the appellant was present in the house and therefore he is entitled for acquittal on the basis of benefit of doubt.
Arguments
Patwari. Postmortem was conducted by Dr. (Smt.) C.K. Singh (PW-5) vide Ex.P-10 and cause of death was stated to be cardio-respiratory failure due to internal & external haemorrhage due to injury over body and vital organs and nature of death was homicidal. The accused was arrested vide Ex.P-19 and his memorandum statement was recorded vide Ex.P-5 pursuant to which one wooden stick has been seized from the spot vide Ex.P-7. Seized articles were sent for chemical examination to the Regional Forensic Science Laboratory, Bilaspur from where report has been received vide Ex.P-23 according to which human blood has been found on wooden stick Art. C, lower of the accused Art. F, full shirt of the deceased Art. G and jacket of the deceased Art. H. 3. Statements of the witnesses were recorded under Section 161 of the CrPC. After usual investigation, the accused / appellant was charge- sheeted for offence under Section 302 of the IPC and charge-sheet was Page 3 of 15 (Cr.A.No.1298/2019) filed before the jurisdictional criminal court and the case was committed to the Court of Sessions, Korba from where the learned Additional Judge, Katghora to the Court of Additional Sessions Judge, Katghora, received the case on transfer for trial. 4. The accused / appellant abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as nine witnesses and exhibited 24 documents. The defence has examined none and no document has been exhibited. 5. The trial Court upon appreciation of oral and documentary evidence on record and considering the homicidal nature of death of the deceased and also considering that it is the appellant who has caused the murder of the deceased, proceeded to convict and sentence him under Section 302 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred. 6. Mr. A.K. Samantray, learned counsel appearing for the appellant, would submit that dead body of the deceased was though recovered in the house of the appellant, but it is an open place and the trial Court after having recorded finding that it was an open place from where the dead body of the deceased was recovered i.e. in the courtyard of the appellant, convicted the appellant in absence of any explanation by applying Section 106 of the Indian Evidence Act, 1872, whereas it has not been proved that the appellant and the deceased were seen together lastly on the date and time of offence and thus, Section 106 of the Evidence Act Page 4 of 15 (Cr.A.No.1298/2019) could not have been invoked as presence of the appellant in the house in question on the date and time of offence is also not established, therefore, the appellant is entitled for acquittal. 7. Mr. Vivek Mishra, learned Panel Lawyer appearing for the State / respondent, would support the impugned judgment and would submit that death of the deceased was homicidal in nature and it is the appellant who has caused the death of the deceased. He would further submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt. As such, with the aid of Section 106 of the Evidence Act, the appellant has rightly been convicted under Section 302 of the IPC. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the trial Court with utmost circumspection and carefully as well. 9. The question whether the death of the deceased was homicidal in nature has rightly been answered by the trial Court in affirmative relying upon the statement of the medical officer Dr. (Smt.) C.K. Singh (PW-5), who has proved the postmortem report Ex.P-10, which is a pure and simple 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. 10.The trial Court has recorded a finding that the dead body of the deceased was found in the courtyard of the appellant in an open place which is Page 5 of 15 (Cr.A.No.1298/2019) apparent from the spot map prepared by the Investigating Officer vide Ex.P-4 (crime details form) and the spot map prepared by the Patwari vide Ex.P-16. Since the dead body was found in the house of the appellant from courtyard, Section 106 of the Evidence Act would be attracted. However, the question is, whether in absence of explanation, when the deceased died in the house of the appellant and human blood was found on the clothes of the appellant and also on the weapon of offence wooden stick, whether the trial Court has rightly invoked Section 106 of the Evidence Act? 11. Case of the prosecution is not based on direct evidence, it is based on circumstantial evidence and the trial Court has proceeded to convict the appellant applying Section 106 of the Evidence Act. Therefore, it would be appropriate to notice relevant decisions of the Supreme Court on the point. 12. In the matter of Balvir Singh v. State of Uttarakhand1, their Lordships of the Supreme Court, reviewing their earlier decision on the point of Section 106 of the Evidence Act, have held that Section 106 has to be applied in criminal cases with care and caution, and observed in paragraphs 41 to 48 as under:- “41. Thus, from the aforesaid decisions of this Court, it is evident that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106 of the Evidence Act. 1 2023 SCC OnLine SC 1261 Page 6 of 15 (Cr.A.No.1298/2019)
Decision
20. For the foregoing reasons, conviction and sentences imposed upon the appellant under Section 302 of the IPC are liable to be set aside and they are hereby set aside and he is acquitted of the said charge. He is in jail Page 15 of 15 (Cr.A.No.1298/2019) since 25-1-2018. He be released forthwith, if not required in any other case. 21. The criminal appeal stands allowed. 22. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for necessary information and action, if any. Sd/- (Sanjay K. Agrawal) JUDGE Sd/- (Sanjay Kumar Jaiswal) JUDGE Soma