Nafr High Court
Case Details
1 Digitally signed by BHOLA NATH KHATAI Date: 2025.03.12 10:41:45 +0530 2025:CGHC:11102-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1873 of 2019 Ramlal Sahu S/o Jhadiram Sahu, Aged About 36 Years R/o Village Chhirpani, Police Station Kukdur, District Kabirdham Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Kukdur, Civil And Revenue District Kabirdham Chhattisgarh. ... Respondent For Appellant : Mr. Vivek Kumar Agrawal, Advocate For Respondent : Mr. Ashish Shukla, Addl. Advocate General & Mr. Amit Buxy, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (06.03.2025) Sanjay K. Agrawal, J. 1. This criminal appeal has been preferred under Section 374(2) of Cr.P.C. calling in question the legality, validity and 2 correctness of the judgment of conviction and order of sentence dated 04.11.2019, passed by learned Additional Sessions Judge, Kabirdham (C.G.) in Sessions Trial No.12/2019, whereby the appellant herein has been convicted for offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo Life Imprisonment with fine of 5,000/- and in default of ₹ payment of fine, to suffer 6 months additional rigorous imprisonment. 2. The case of prosecution, in brief, is that on 19.01.2019 at about 08:00 p.m., at village Chhirpani, Police Station
Facts
Kukdur, District Kabirdham, the appellant herein, assaulted his wife Gouribai Sahu (now deceased) by axe, by which she suffered grievous injuries and died; thereby committed the offence. The matter was reported to the Police by the son of Kotwar Rohit Kumar Sakat (PW-5), pursuant to which, Dehati Merg Intimation was recorded vide Ex. P-8 and FIR was registered vide Ex. P-16. Spot map was prepared vide Ex. P-9. Inquest was conducted vide Ex. P-2 and dead body of deceased Gouribai was subjected to post-mortem, which was conducted by Dr. Prasangina Sadhu (PW-8), who proved the post-mortem report Ex. P-11, according to which, cause of death was due to incised wound with comminuted fracture of cervical vertebrae (C1, C2, C3) with rupture of internal jugular vein and deep groove in bone and death was homicidal in nature. Pursuant to memorandum statement of appellant (Ex.P-3), the weapon of offence i.e. axe was seized vide Ex. P-7, which was sent for chemical examination to FSL along-with other seized articles and as per FSL report Ex.P-20, human blood of ‘B’ Group was found on the said axe. After completion of investigation, appellant was charge- sheeted for the aforesaid offence before the jurisdictional 3 criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law. 3. During the course of trial, in order to bring home the offence, prosecution examined as many as 12 witnesses and exhibited 20 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. The statement of appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 4. Learned trial Court, after appreciation of oral and documentary evidence on record, convicted and sentenced the appellant herein as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred by the appellant questioning the legality, validity and correctness of the impugned judgment.
Legal Reasoning
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao 1 (1984) 4 SCC 116 5 Bobade v. State of Maharashtra2 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 9. The trial Court, in para-35 of its judgment, has found the following incriminating circumstances to be proved for convicting the appellant under Section 302 of IPC: i) The death of deceased Gouribai was homicidal in nature. ii) The appellant has failed to establish that on the date and time of offence, he was not in the house with his wife (deceased) but was somewhere else and he could not explain as to how and in what circumstances his 2 (1973) 2 SCC 793 6 wife died, therefore, the provisions of section 106 of the Evidence Act would be applicable. iii) The motive of offence is established from the statements of witnesses Ganesh (PW-2) and Kejuram (PW-10) who are the sons of appellant and deceased. iv) As per FSL report Ex.P-20, human blood of ‘B’ Group was found on the weapon of offence i.e. axe seized from the appellant pursuant to his memorandum statement Ex. P-3. 10. Now, we will consider the circumstances recorded by the trial Court in the light of the principles of law laid down by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda (supra). 11. The first and foremost circumstance for consideration is as to whether the death of deceased Gouribai was homicidal in nature? 12. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex. P-11 proved by Dr. Prasangina Sadhu (PW-08), according to which, cause of death was incised wound with comminuted fracture of cervical vertebrae (C1, C2, C3) with rupture of internal jugular vein and deep groove in bone and death was homicidal in nature, which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. Second Circumstance 13. The trial Court has invoked Section 106 of the Evidence Act holding that on the date and time of offence, the appellant 7 was present in the house along with his wife (deceased) and he could not explain as to how and in what circumstances, his wife died. But, it is well settled that the initial burden is upon the prosecution to first prima facie establish the guilt of the accused and then only the burden shifts upon the accused to explain the circumstances as contemplated by Section 106 of the Evidence Act. 14. In this regard, the Hon’ble Supreme Court, in the matter of Anees v. The State Govt. of NCT3, has elaborately considered the principles of law governing the applicability of Section 106 of the Evidence Act and has 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 burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution 3 . 2024 INSC 368 [Criminal Appeal No.437 of 2015, decided on 30.05.2024]CC 8 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] 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 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. 9 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 10 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 11 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 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. The principle of law laid down in the case of Anees (supra) has been followed very recently by the Supreme Court in the case of Ravi v. State of Punjab4. 16. In light of the principles of law laid down by their Lordships of the Supreme Court in the above judgments, it is quite vivid that Section 106 of the Evidence Act would be invoked only where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the guilt of the accused and not otherwise. 4 2025 SCC OnLine SC 279 12 17. In this case, though the prosecution has been able to prove that the death was homicidal in nature, but there is no evidence on record that on the date and time of offence the appellant was present in the house along with the deceased or they were last seen together, in order to invoke section 106 of the Evidence Act. Ballaram Barwe (PW-1) is the neighbour of the appellant and is also the witness to inquest Ex. P-2. Ballaram Barwe (PW-1) in his 161 CrPC statement has only stated that on 20.01.2019 he was informed by Rohit Kumar Sakat (PW-5) that the appellant had assassinated his wife. When he went to the house of appellant along with the villagers, he saw the deceased lying dead on the bed inside the house. However, on being declared hostile, leading questions were put to this witness, in which in para-2, he has stated that he was not informed by Rohit Kumar Sakat (PW-5) that the appellant had assassinated his wife. In para-5 he has stated that on the date of offence, the sons of the deceased, Ganesh (PW-2) & Kejuram Sahu (PW-10) were not in the house and only her husband i.e. the appellant was present. However, such fact is not available in his 161 CrPC statement though he was present in the inquest proceeding (Ex.P-2). It is not the case of the prosecution that Ballaram Barwe (PW-1) had lastly seen the appellant and the deceased together in the house on the date of offence. Even that statement was made on leading question being asked after the appellant was declared hostile. Hence, this part of evidence of Ballaram Barwe (PW-1) would not be admissible. Moreover, brother of the deceased Ramkhilawan (PW-4) has only stated that after attending Dashagatra ceremony of his father at Hardibandh, his sister (deceased) and the appellant went back to their village Chhirpani. As such, from the evidence available on 13 record, the presence of the appellant and the deceased together in the house on the date and time of offence is not established beyond reasonable doubt. Therefore, the trial Court is absolutely unjustified in invoking Section 106 of Evidence Act for convicting the appellant under Section 302 of IPC. T hird Circumstance 18. The third circumstance that has been found established by the Trial Court is Motive. In this regard, the trial Court has relied upon the statements of Ganesh (PW-2) & Kejuram Sahu (PW-10) who are the sons of appellant and deceased. Both the witnesses, in their court statements, have clearly stated that the appellant used to assault and torture their mother (deceased) doubting her character. As such, the trial Court has rightly held that the motive of offence has been established. Fourth Circumstance 19. The fourth circumstance which has been found to be proved by the trial Court is that pursuant to the memorandum statement of the appellant, the weapon of offence i.e. axe was seized vide Ex. P-7, on which, as per FSL report Ex. P- 20, human blood of ‘B’ Group was found. Though, on the weapon of offence human blood was found but it could not be established that the same weapon of offence was used by the appellant in commission of the offence. Even otherwise, as per the principle of law laid down in the case of Mustkeem alias Sirajudeen v. State of Rajasthan5, which has been followed in the matter Raja Naykar v. State of 5 (2011) 11 SCC 724 14 Chhattisgarh6, the finding of human blood stain on the seized article is one of the circumstances, on the basis of which, the accused cannot be convicted for offence under Section 302 of IPC. Thus, merely on the basis of motive of the offence, the appellant cannot be convicted for the said offence. 20. In view of the aforesaid discussion, we find that as per the principle of ‘Panchsheel’ laid down by the Hon’ble Supreme Court in the case of Sharad Birhichand Sarda (Supra), the chain of circumstances is not so complete in which the appellant can be held guilty for the offence. The prosecution has failed to produce evidence to prove the guilt of the appellant beyond the shadow of doubt on the basis of the circumstantial evidence. Consequently, we are unable to uphold the conviction of the appellant for the aforesaid offence and he is entitled for acquittal on the basis of the principle of benefit of doubt. 21. Accordingly, the impugned judgment dated 04.11.2019 passed by the Trial Court convicting and sentencing the appellant for offence under Section 302 of IPC is hereby set aside/quashed on the basis of benefit of doubt and the appellant is acquitted of the said charge. The appellant is reported to be in jail. He be released from jail forthwith, if his detention is not required in connection with any other offence. 22. This criminal appeal, accordingly, stands allowed. 23. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned trial Court for necessary information & action, if any. A copy of the 6 (2024) SCC Online SC 67 15 judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence. Sd/- Sd/- Sd/- Sd/- Khatai Judge Judge (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)
Arguments
5. Mr. Vivek Kumar Agrawal, learned counsel for appellant would submit that the trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC by invoking Section 106 of the Evidence Act as there is no evidence that the appellant was in the house along with the deceased on the date and time of offence. He would further submit that as per FSL report (Ex P-20), though human blood was found on the axe but it has not been proved that the said axe was used in commission of the offence. As such, the prosecution has failed to establish the case beyond reasonable doubt and the appellant is entitled for acquittal on the basis of principles of benefit of doubt. 4 6. Mr. Ashish Shukla & Mr. Amit Buxy, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence under Section 302 of I.P.C. As such, the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 8. The case of prosecution is not based on direct evidence. It is based on circumstantial evidence. The five golden principles which constitute the Panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra1 which must be fulfilled for convicting an accused on the basis of circumstantial evidence. The relevant paragraph 153 of the said judgment reads as under: - “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.