Chattisgarh High Court
Anant Dutta vs State Of Chhattisgarh on 17 August, 2022
Cr.A.No.457/2014
Page 1 of 19
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.457 of 2014
{Arising out of judgment dated 21-4-2014 in Sessions Trial No.86/2012 of
the learned Additional Sessions Judge (FTC), North Bastar, Kanker}
Judgment reserved on: 20-7-2022
Judgment delivered on: 17-8-2022
Anant Dutta, S/o Bholanath Dutta, aged about 37 years, R/o Village P.V.-
II, Police Station Pakhanjur, District North Bastar Kanker (C.G.)
(In Jail)
---- Appellant
Versus
State of Chhattisgarh, through Station House Officer, Police Station
Pakhanjur, District North Bastar Kanker (C.G.)
---- Respondent
--------------------------------------------------------------------------------------------------
For Appellant: Mrs. Savita Tiwari, Advocate.
For Respondent/State: Mr. Sudeep Verma, Deputy Government
Advocate and Mr. Arjit Tiwari, Panel Lawyer.
-------------------------------------------------------------------------------------------------
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Sanjay S. Agrawal, JJ.
C.A.V. Judgment
Sanjay K. Agrawal, J.
1. This criminal appeal preferred under Section 374(2) of the CrPC is
directed against the judgment of conviction recorded and sentence
awarded by the learned Additional Sessions Judge (FTC) by which
the appellant has been convicted for offences under Sections 302 &
201 of the IPC and sentenced to undergo imprisonment for life and
further sentenced to pay a fine of ₹ 100/-, in default, to further
undergo rigorous imprisonment for six months and to undergo
rigorous imprisonment for three years and further sentenced to pay
Cr.A.No.457/2014
a fine of ₹ 100/-, in default, to further undergo rigorous
imprisonment for one month, respectively.
2. Case of the prosecution, in brief, is that on 7-5-2012 at 3 p.m., in
Village PV-II, Police Station Pakhanjur, District North Bastar
Kanker, the accused strangulated his wife namely, Dullu Dutta by
saree and knowing well that she is dead, in order to cause
disappearance of evidence and to screen himself, hanged the dead
body in the room and fled away from the open area reserved for
ventilation after widening that area and thereby committed the
above-stated offences. On 8-5-2012, brother of the appellant
herein namely, Dhruva Dutta informed Jatin Vishwas (PW-1) that
Smt. Dullu Dutta has committed suicide by hanging. Thereafter,
Jatin Vishwas (PW-1) on 8-5-2012 got registered morgue intimation
(Ex.P-1) stating that his elder sister Smt. Dullu Dutta was married to
the appellant and out of their wedlock, they have three children (two
sons aged about 12 years & 9 years and one daughter aged about
7 years) and on being informed that she has committed suicide, he
visited the house of the appellant and the appellant was treating his
sister with cruelty and also assaulting her for last one year and on
account of that she has committed suicide. Thereafter, after
morgue enquiry, it was revealed that she has not committed suicide
and inquest was conducted vide Ex.P-6 and dead body was sent
for postmortem. According to the postmortem Ex.P-14, cause of
death was asphyxia due to throttling and nature of death was
homicidal. The postmortem report is proved by Dr. Sukhdev
Shende (PW-14). Thereafter, on being enquired from the appellant,
Cr.A.No.457/2014
it was found to be a case of throttling by sari and in order to cause
disappearance of evidence and to screen himself from the offence,
the appellant has hanged the dead body of the deceased.
Thereafter, Dehati Nalishi Ex.P-16 was registered against the
appellant for offences under Sections 302 & 201 of the IPC and FIR
was also registered vide Ex.P-17.
3. Statements of the witnesses were recorded under Section 161 of
the CrPC. After usual investigation, the accused / appellant was
charge-sheeted for offences under Sections 302 & 201 of the IPC
and charge-sheet was filed before the jurisdictional criminal court
and the case was committed to the Court of Sessions from where
the Additional Sessions Judge (FTC), North Bastar, Kanker
received the case on transfer for hearing and disposal in
accordance with law.
4. The accused / appellant abjured the guilt and entered into witness.
In order to bring home the offence, the prosecution examined as
many as fifteen 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 his wife, proceeded to convict and sentence
him under Sections 302 & 201 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. Mrs. Savita Tiwari, learned counsel appearing for the appellant,
Cr.A.No.457/2014
would submit as under: -
1. It is a case of commission of suicide by the deceased and the
appellant has not committed the offence.
2. The prosecution has not led any evidence to hold that it is the
appellant who has committed the offence, as the room in
question was found locked from inside which is admitted by
investigating officer Bhagwat Chalki (PW-11).
3. Panch witness Khokhan Das (PW-2) has turned hostile and
has not proved the panchnama Ex.P-7.
4. It is also not clear that it is the appellant who has committed
the offence. Merely on the basis of provision contained in
Section 106 of the Indian Evidence Act, 1872, the appellant
having not explained his position, cannot be convicted with
the aid of Section 106, as the appellant was residing with his
three children. The prosecution has neither examined the
three children nor Dhruva Dutta who has informed Jatin
Vishwas (PW-1) - brother of the deceased, about the
incident. There is no other evidence to connect the appellant
with the offence in question, therefore, he deserves to be
acquitted. Reliance has been placed upon the decision of the
Supreme Court in the matter of Narendra Singh and others v.
State of M.P.1 in support of her case.
7. Mr. Sudeep Verma, learned Deputy Government Advocate
appearing for the State / respondent, would support the impugned
judgment and would submit that death of the deceased was
1 (2004) 10 SC 699
Cr.A.No.457/2014
homicidal in nature and it is the appellant who has caused the
death of his wife Smt. Dullu Dutta by throttling and thereafter, in
order to screen himself from the above-stated offence, he hanged
the dead body of the deceased and fled away from the open area
reserved for ventilation which is duly proved by Ex.P-7 panchnama
and furthermore, investigating officer Bhagwat Chalki (PW-11) has
also proved the said fact. As such, with the aid of Section 106 of
the Evidence Act, the appellant has rightly been convicted under
Sections 302 & 201 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. Now, the following two questions arise for consideration: -
1. Whether the death of deceased Smt. Dullu Dutta was
homicidal in nature?
2. If yes, whether the appellant herein is the author of the crime
in question?
Re. Reference to Question No.1:
10. It is the case of the appellant that death of Dullu Dutta (deceased)
was suicidal in nature, whereas it was the case of the prosecution
that death was homicidal in nature, which the trial Court has
answered in favour of the prosecution by holding that death of the
deceased (Smt. Dullu Dutta) was homicidal in nature.
11. In order to hold the death of the deceased to be homicidal, the trial
Cr.A.No.457/2014
Court has relied upon the statement of Medical Officer Dr. Sukhdev
Shende (PW-14), who has conducted postmortem over the body of
the deceased and submitted report vide Ex.P-14 and also proved
the same by making statement on oath before the Court. In order
to understand the dispute, it would be appropriate to notice the
internal examination of the dead body of the deceased conducted
by Dr. Sukhdev Shende (PW-14) who has stated in paragraph 1 of
his evidence as under: -
e`frdk dk 'kjhj B.Mk Fkk] jk;xj ekfVZl ugha Fkk] e`frdk us dkys jax
dk Cykmt] yky jax dk isVhdksV] vkjsat dyj dk fizaVsM lkM+h iguh
gqbZ Fkh] 'kjhj lh/kk Fkk nksuksa gkFk] iSj lh/ks Fks] nksuksa dykbZ vkSj
mxfy;ka vdM+h voLFkk esa FkhA nksuksa dykbZ esa lQsn o yky jx pqM+h
Fkh] eqag Qqyk] thHk ckgj Fkh rFkk nkrks ds chp nch Fkh] 'kjhj ij
QQksys FksA xnZu ds pkjksa vksj uhys o dkyk fu'kku ekStwn Fkk tks
gk;Mcksu VqVk gqvk FkkA psgjk lqt dj uhyk iM+ x;k Fkk] vkWa[ks ckgj
fudy jgh Fkh] vka[kks ds vanj dk inkZ vanj /kal x;k Fkk nksuks
iqrfy;ka QSyh gqbZ FkhA eqag ds nksuksa rjQ [kqu ;qDr Qzkr ds fu'kku
FksA gkFkksa ds mxfy;ksa esa uhykiu Fkk] Vz~sfd;k ds fjax vkSj Fkk;jkbZM
dkfVZyst QsDpj Fkk] flj dh rjQ tkus okyh cM+h [kqu dh /keuh esa
batqjh ik;h xbZA 'kjhj ds cgqr ls fgLlks ij [kjksp ds fu'kku ekStwn
Fks tSls ¼1½ ihV ij vkSj nksuks dU/kksa ds fiNys Hkkx ij ekStwn Fks
ftudk vkdkj yxHkx 5 lseh xq.kk 1-5 lseh Fkk] nksuks Vduksa ij
[kjksp ds fu'kku Fks ftudk vkdkj yxHkx 3 lseh xq.kk 1 lseh Fkk]
nksuksa ,fM+;ksa ds fiNys Hkkx ij [kjksp ds fu'kku Fk ftldk vkdkj
yxHkx 3 lseh- xq.kk 1-5 lseh FkkA ¼2½ e`rd ds 'kjhj ds flj esa ckyksa
esa rFkk Cykmt o lkM+h esa ?kj dh feV~Vh yxh gqbZ FkhA Nkrh ds
lkeus Hkkx esa [kjksp ds fu'kku Fks] ftudk vkdkj yxHkx 3 lseh xq.kk
1 lseh FkkA
vkarfjd ijh{k.k%&
d.B ,oa Lokl uyh esa [kqu ;qDr Qzkd Fkk] nksuksa QsQM+s lqtu Fkh]
'kjhj ds ckdh vkarfjd vax dUtsLVsM FksA e`frdk ds xys esa yxh gqbZ
lkM+h dks lhycan dj mlh vkj{kd dks lkSi fn;k FkkA
vfHker%&
esjs erkuqlkj e`frdk dh e`R;q xyk nckus ls 'okl vo:) gksus ij
gqbZ gS e`R;q dh izd`fr gkseh lkbZMy ¼ekuo o/k½dh Fkh] le; yxHkx
14 ls 16 ?kUVs ds chp dh FkhA esjh fjiksVZ iz0ih0&14 gS ftlds c ls
c Hkkx ij esjs gLrk{kj gSaA fnukad 06-07-2012 dks Fkkuk i[kkatwj ds
lgk;d mi fujh{kd Hkkxor pkydh }kjk e`frdk }kjk Qklh esa
mi;ksx dh xbZ lkM+h ftldk jax vkSjsat dyj dh fizaVsM lkM+h ftldh
yEckbZ yxHkx lk<+s ikap ehVj FkhA ftlls xyk ?kksVk tkuk lEHko gSA
Cr.A.No.457/2014
Dosjh fjiksVZ iz0ih0&23 gS ftlds v ls v Hkkx ij esjs gLrk{kj gSaA
fnukad 09-05-12 dks nksigj 1%05 cts vkjksih vkuar nRrk dks esjs
le{k 'kkjhfjd ijh{k.k gsrq vkj{kd dz&932 Hkqisanz lkgw }kjk izLrqr
fd;k x;k FkkA ftldk ijh{k.k djus ij mls 'kkjhfjd :i ls LoLFk
ik;k rFkk mlds 'kjhj esa dksbZ pksV ds fu'kku ugha ik;k esjh fjiksVZ
iz0ih0&24 gS ftlds v ls v Hkkx ij esjs gLrk{kj gSaA
12. A careful perusal of the aforesaid statement of Dr. Sukhdev Shende
(PW-14), who has proved the postmortem, would show that cause
of death was due to throttling and nature of death was homicidal. It
is also apparent from the record that around the neck, there was
blue & black mark present and hyoid bone was found fractured.
The doctor has further opined that there was swelling on both lungs
and internal organs were congested. While answering a query vide
Ex.P-23, he has also stated that throttling can be caused by the
printed saree which was seized. As such, the finding of the learned
trial Court that death of deceased Smt. Dullu Dutta was homicidal in
nature, 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 that death was homicidal in nature.
13. Now, the next question is, whether the appellant is the author of the
offence in question?
14. 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 Jatin Vishwas (PW-1) & Ravi Vishwas (PW-
8) - brothers of the deceased and Smt. Jaya Vishwas (PW-12) -
sister-in-law of the deceased (bhabhi) being wife of Jatin Vishwas,
who have categorically stated in their statements before the Court
that the appellant had illicit relationship with a woman staying at
Cr.A.No.457/2014
Village PV-129 and the appellant used to visit her place and on that
account it was asked by the deceased to refrain from that act, but
the appellant did not change his way to conduct himself and on that
count, used to assault his wife (deceased) and strangulated their
sister by saree by which she died. The aforesaid finding recorded
by the trial Court is based on the evidence available on record
which establishes that the appellant had strong motive to commit
the offence. However, now, the question remains, whether it is the
appellant who has throttled the deceased, as it is the finding of the
trial Court that on the date of incident, the room, in which the
deceased & the appellant were staying, was found bolted from
inside and the appellant has absconded from open place reserved
for ventilation. Ex.P-7 is the panchnama in which it has been found
by the trial Court that in order to widen the open space reserved for
ventilation, 14 bricks have been dismantled from that place and that
has been done in order to escape from the room where the
deceased was found murdered and the panchnama has been
proved by Khokhan Das (PW-2). Thereafter, the trial Court has
further held that the appellant after throttling the deceased ran
away from the open area kept reserved for ventilation and
absconded from the village after hanging the dead body of the
deceased in the room in order to screen himself from the offence
and showing it to be a case of suicide by the deceased herself.
Since the appellant has not explained as to how his wife died on
account of strangulation, burden was open him to explain that
under what circumstances his wife died in the room where he and
Cr.A.No.457/2014
his wife both were residing exclusively and it is a case of house
murder.
15. The trial Court relying upon the provision of Section 106 of the
Indian Evidence Act, 1872, proceeded to convict the appellant
under Sections 302 & 201 of the IPC holding that it is the appellant
who has throttled the deceased by saree and hanged her body in
the room and jumped from the open area reserved for ventilation by
dismantling 14 bricks and absconded from the spot. The appellant
did so because he had illicit relationship with another woman
residing at PV-129 which the deceased asked him not to remain
involved in such activity. The appellant has failed to explain under
what circumstances the deceased i.e. his wife, died in the room in
which he and the deceased both were residing.
16. In order to consider the plea, it would be appropriate to notice the
statement of Jatin Vishwas (PW-1), who is brother of the deceased.
In para 2 of his statement, he has stated that he was informed by
one of the brothers of the appellant - Dhruva Dutta that Smt. Dullu
Dutta has committed suicide and when he reached to the spot, the
appellant was sitting along with his children.
17. Thus, from oral and documentary evidence on record, the following
facts are quite established: -
1. On the date of incident, in the house, apart from the appellant
and the deceased, their two sons and one daughter, aged
about 12 years, 9 years and 7 years, respectively, were also
staying with them which is apparent from the evidence of
Jatin Vishwas (PW-1) (paragraph 1), Ravi Vishwas (PW-8)
Cr.A.No.457/2014
(paragraph 5) and Smt. Parvati (PW-15) (paragraph 5).
2. The appellant had illicit relationship with a woman staying at
PV-129 on account of which the appellant used to quarrel
with his wife / deceased on being asked to refrain from that
act and also used to beat her on being opposed by her of his
illegitimate act of having relationship with woman staying at
PV-129.
3. It has been claimed that the room in which the deceased was
found hanging, was bolted from inside, but it was not broken
in presence of the police or the Executive Magistrate and it
was broken by the appellant himself. As per the statement of
Bhagwat Chalki (PW-11) - investigating officer, before the
police party reached the house, where the offence is said to
have been committed, the room was already opened and no
panchnama has been prepared before opening the door of
the said house in question, as it was already opened prior to
the police party reached to the spot.
4. The appellant has not been seen running away from the area
kept reserved for ventilation just before or after the incident.
5. Death of the deceased was homicidal in nature and it was not
suicidal in nature.
18. The prosecution has only proved motive on the part of the appellant
to commit murder of his wife, as he had illicit relationship with a
woman staying at PV-129 which is being opposed by his wife and
she asked him from time to time to discontinue that relationship and
Cr.A.No.457/2014
secondly, death of the deceased was homicidal in nature by
throttling. But, apart from that, no other incriminating circumstance
has been brought to the fore by the prosecution and the trial Court
has proceeded to convict the appellant relying upon Section 106 of
the Indian Evidence Act, 1872, ignoring the fact that apart from the
appellant and the deceased, three children of the appellant and the
deceased were also staying in the same house.
19. Now, the question would be, whether Section 106 of the Evidence
Act would be applicable or not?
20. Section 106 of the Indian Evidence Act, 1872, states as under: -
"106. Burden of proving fact especially within knowledge.--
When any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him."
21. This provision states that when any fact is specially 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 persons were in such a position that they could
have special knowledge of the fact concerned.
22. In the matter of Shambhu Nath Mehra v. The State of Ajmer 2, their
Lordships of the Supreme Court have held that the general rule that
2 AIR 1956 SC 404
Cr.A.No.457/2014
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 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 preeminently 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.
23. The decision of the Supreme Court in Shambhu Nath Mehra (supra)
was followed with approval recently in the matter of Nagendra Sah
Cr.A.No.457/2014
v. State of Bihar3 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 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."
24. Similarly, the Supreme Court in the matter of Gurcharan Singh v.
State of Punjab4, 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
3 (2021) 10 SCC 725
4 AIR 1956 SC 460
Cr.A.No.457/2014
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.
25. 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 Bihar5 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.
26. Now, the question is, whether the prosecution has discharged its
initial or general burden or primary duty of proving the guilt of the
accused beyond reasonable doubt?
27. In this regard, the findings of the trial Court recorded in paragraphs
31 & 32 of the judgment are relevant which are as under: -
31- cpko i{k ds }kjk vius ekSf[kd rFkk fyf[kr rdZ esa eq[; :i
ls ;g fl) djus dk iz;kl fd;k tk jgk gS fd e`frdk dh e`R;q Lo;a
Qkalh yxkdj vkRegR;k djus ls gqbZ gS fdUrq fu.kZ; esa fpfdRld
lk{kh ds dFku ds :i esa iwoZ esa ;g fu"d"kZ fn;k tk pqdk gS fd
fpfdRld lk{kh us e`frdk ds 'ko foPNsnu fd;s tkus ds mijkar viuh
fjiksVZ esa e`frdk dh e`R;q xyk nckus ls 'okal vojks/k ds dkj.k crk;k
gS rFkk e`R;q dh izd`fr ekuo o/k Lo:i dh gksuk ik;k gSA ,slh
voLFkk esa cpko i{k dk ;g rdZ fd e`frdk us vkRegR;k dh] u rks
mldh vksj ls fdlh fo'ks"kK lk{kh ,oa u gh fdlh nLrkosth lk{; ds
}kjk fl) fd;k x;k gS ,oa u gh vfHk;kstu dh vksj ls izLrqr fdlh
nLrkost esa e`frdk ds 'ko foPNsnu fjiksVZ ds foijhr dksbZ er fn;k
x;k gSA ,slh fLFkfr esa izdj.k esa ;g LFkkfir gS fd e`frdk us
vkRegR;k ugha dh gS rFkk mldk xyk nckdj mldh gR;k dj mls
vkRegR;k Lo:i nsus ds fy;s Qkalh ij yVdk fn;k x;k FkkA
32- e`frdk] vkjksih rFkk muds cPps mlh ?kj ¼?kVuk okys ?kj½esa
jgrs Fks] tgka e`frdk dh e`R;q gqbZ gS] ,slh voLFkk esa ml dejs esa
ftlesa e`frdk rFkk vkjksih jgrs gSa] esa e`frdk dk 'ko xyk nckdj
gR;k fd;s tkus ds mijkar ml dejs esa Qkalh ij yVdk ik;k x;k
rFkk ml dejs ds jks'kunku ls bZaVksa dks gVkdj gR;k ds mijkar ml
5 AIR 1974 SC 778
Cr.A.No.457/2014
dejs dks vUnj ls can dj ckgj fudyk x;kA ,slh voLFkk esa
izek.k&Hkkj vkjksih ds mij pyk tkrk gS fd ?kVuk ds le; og ?kj esa
ugha Fkk rFkk fdlh vU; LFkku ij Fkk] ftls vkjksih ds }kjk izdj.k esa
ekSf[kd ;k nLrkosth lk{; ds vk/kkj ij dgha Hkh fl) ugha fd;k x;k
gSA izdj.k esa ;g izek.k&Hkkj Hkh vkjksih ij gS fd ftl ?kj esa og
viuh iRuh ds lkFk jgrk Fkk] ml ?kj ds mlds dejs esa mldh iRuh
dks mlds vykok fdl vU; O;fDr }kjk gR;k djus ds mijkar mldh
yk'k dks Qkalh ij yVdkdj jks'kunku ls Qjkj gks x;kA tcfd
izdj.k esa vkjksih ds }kjk ;g dgha Hkh fl) ugha fd;k x;k gS fd
mldh iRuh dk fdlh vU; O;fDr ls ,slk dksbZ 'k=qrk gks fd mldh
iRuh dk fdlh vU; O;fDr ds }kjk gR;k fd;k x;k gS ,oa u gh cpko
i{k ds }kjk fdlh Hkh lk{kh ls izfrijh{k.k esa ,slk dksbZ iz'u fd;k
x;k gS fd mldh iRuh dh gR;k fdlh vU; O;fDr us dh gSA ,slh
fLFkfr esa ;g ik;k tkrk gS fd vkjksih tks fd mlds ?kj esa viuh
iRuh ds lkFk jgrk Fkk] ds }kjk viuh iRuh dh gR;k djus ds mijkar
mldh gR;k ds lk{; dk foyksiu djus ds vk'k; ls mls vkRegR;k
dk Lo:i nsdj mldh iguh gqbZ lkM+h dk Qank cukdj mls dejs esa
gh yVdk fn;k x;k rFkk ml dejs dks vanj ls can dj jks'kunku ds
bZaVksa dks gVkdj vkjksih fudy x;kA vr% ;g ik;k tkrk gS fd
vkjksih dk vU; efgykvksa ls laca/k gksus ds dkj.k mldk viuh iRuh
ls yM+kbZ&>xM+k gksrk Fkk] ftl dkj.k mlus viuh iRuh dh xyk
?kksVdj gR;k djus ds mijkar gR;k ds lk{; dks foyksiu djus ds
vk'k; ls mlds 'ko dks dejs esa gh mldh dh lkM+h ls Qkalh ij
yVdkdj mls Qkalh dk Lo:i nsrs gq;s gR;k ds lk{; dk foyksiu
fd;k x;kA
28. A careful perusal of the aforesaid findings recorded by the trial
Court would show that the prosecution has established that,
1. death of deceased Smt. Dullu Dutta was homicidal in nature;
2. on the date of offence, the appellant, the deceased and their
three children were staying in the house and the appellant
had illicit relationship with a woman; and
3. it is the appellant who has murdered his wife by throttling and
he came out of the room after bolting it from inside from the
area kept open for ventilation and thereafter, in order to
screen himself, the appellant hanged the dead body in the
room.
29. From the facts and evidence available on record, it is quite vivid
that death of the deceased was homicidal in nature and cause of
Cr.A.No.457/2014
death was throttling, as the prosecution has proved that death of
the deceased was by throttling and to be homicidal in nature. This
finding of the trial Court is the correct finding in view of the finding
arrived into by us in the foregoing paragraphs and thereafter,
except motive to commit murder on the part of the appellant that he
had illicit relationship with some woman staying at PV-129 which he
has refuted in his statement recorded under Section 313 of the
CrPC in answer to question No.6, no further incriminating
circumstances have been established by the prosecution.
Furthermore, from the finding recorded by the trial Court in
paragraph 32, it is quite vivid that it is not the appellant and his wife
alone residing in the house in question, but their three children
were also residing in the same house and none of them have been
examined by the prosecution, as they could have been the
important witnesses to throw some light on the death of the
deceased. Though the trial Court has recorded a finding that the
room in question was bolted from inside, but in the statement
before the Court, Bhagwat Chalki (PW-11) has clearly stated that
before reaching on the spot, in the house of the appellant, the door
of the house where the dead body of the deceased was hanging,
had already been opened. As such, it is also not established that
the door in question was bolted from inside and the appellant went
outside from the area reserved for ventilation, as even there is no
iota of evidence on record that the appellant was seen running
away from the area in question immediately after the incident, as
the house in question is situated in a residential area. Therefore,
Cr.A.No.457/2014
the prosecution has failed to discharge its primary burden of
proving its case beyond reasonable doubt. As held by their
Lordships of the Supreme Court in Sawal Das (supra), Section 106
of the Evidence Act can be applied only when the prosecution has
led evidence which if believed will sustain conviction, or makes out
a prima facie case, that the question arises of considering facts of
which the burden of proof may lie upon the accused.
30. As such, in our considered opinion, the prosecution has failed to
discharge its primary burden of proving its case beyond reasonable
doubt and merely on the basis of proving the death to be homicidal
in nature and motive for offence, Section 106 of the Evidence Act
cannot be invoked and the appellant cannot be held guilty of the
offence under Section 302 of the IPC. In a case of 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.
31. At this stage, it is contended on behalf of the State / respondent
that since death has been proved to be homicidal in nature by
throttling, conviction would sustain. In the considered opinion of
this Court, same cannot be a ground to convict the appellant for the
offence under Section 302 of the IPC, as postmortem report should
be in corroboration with the evidence on record and cannot be an
evidence sufficient to reach to conclusion for convicting an
accused, in view of the decision of the Supreme Court in the matter
Cr.A.No.457/2014
of Balaji Gunthu Dhule v. State of Maharashtra6.
32. In view of the aforesaid analysis, we are unable to sustain
conviction and sentences imposed upon the appellant under
Sections 302 & 201 of the IPC. Accordingly, the impugned
judgment dated 21-4-2014 passed in Sessions Trial No.86/2012 by
the Additional Sessions Judge (FTC), North Bastar, Kanker, is
hereby set aside. The appellant stands acquitted from the charges
framed against him for the offences punishable under Sections 302
& 201 of the IPC and he shall be forthwith set at liberty, unless he is
required in connection with any other case.
33. The appeal is allowed to the extent indicated herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
Soma
6 (2012) 11 SCC 685
Cr.A.No.457/2014
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.457 of 2014
Anant Dutta
Versus
State of Chhattisgarh
Head Note
Section 106 of the Evidence Act would apply in a case where the
prosecution has discharged its primary burden of proving the guilt of the
accused beyond reasonable doubt.
lk{; vf/kfu;e dh /kkjk 106 ml ekeys esa ykxw gksxk tgkaW vfHk;kstu us vkjksih
dks ;qfDr;qDr lansg ls ijs nks"kh fl) djus ds vius izkFkfed Hkkj dk fuoZgu fd;k gSA
