Sampuran Singh Munna Gond vs State Of Chhattisgarh
2022 Latest Caselaw 6740 Chatt

                                                                           Cr.A.No.1305/2014

                                         Page 1 of 11

                                                                                          NAFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                           Criminal Appeal No.1305 of 2014

 {Arising out of judgment dated 28-11-2014 in Sessions Trial No.22/2014
                of the 2nd Additional Sessions Judge, Korba}

Sampuran Singh Gond @ Munna, Age 35 years, S/o Ram Sewak Singh
Gond, Village Bhatgaonva, P.S. Jaysingh Nagar, Distt. Shahdol (M.P.)
Present Residence - Sector-5/A/1048, Balco Nagar, Village Chuiya, P.S.
Balco Nagar, Korba, Distt. Korba (C.G.)
                                                                (In Jail)
                                                          ---- Appellant

                                            Versus

State of C.G., Through P.S. Balco Nagar, Korba, Distt. Korba (C.G.)
                                                          ---- Respondent

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For Appellant:                  Mr. Ashutosh Shukla, Advocate.
For Respondent/State: Mr. Anmol Sharma, Panel Lawyer.
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                        Hon'ble Shri Sanjay K. Agrawal and
                      Hon'ble Shri Rakesh Mohan Pandey, JJ.

Judgment On Board (11/11/2022)

Sanjay K. Agrawal, J.

1. This criminal appeal preferred under Section 374(2) of the CrPC is

directed against the impugned judgment of conviction recorded and

sentence awarded by the learned Additional Sessions Judge by

which the appellant has been convicted for offence under Section

302 of the IPC and sentenced to undergo imprisonment for life and

further sentenced to pay a fine of ₹ 5,000/-, in default, to further

undergo rigorous imprisonment for one year.

2. Case of the prosecution, in brief, is that the appellant had two

wives, first wife is Sughni @ Savita (deceased) and second wife is Cr.A.No.1305/2014

Divya. The appellant had already deserted his first wife Sughni @

Savita and was residing separately with his second wife Divya on

the date of offence. Further case of the prosecution is that on 26-7-

2013, Ramayan Singh (PW-1) informed to Police Station Balco that

at Village Chuiya, from the house of the appellant herein, smell is

coming and on such report, police party reached to the spot and

registered dehati morgue intimation vide Ex.P-1. Dead body was

recovered and in presence of panchas, inquest was prepared vide

Ex.P-3. Dead body was sent for postmortem which was conducted

by Dr. R.K. Divya (PW-4) vide Ex.P-7 in which cause of death was

stated to be asphyxia due to obstruction of air passages secondary

to manual throttling and death was homicidal in nature. FIR was

registered vide Ex.P-14 and thereafter, memorandum statement of

the appellant was recorded vide Ex.P-10 and motorcycle Yamaha

bearing registration No.CG-12/A-5070 was recovered vide Ex.P-11

in presence of witnesses Motilal Soni (PW-7) & Kaushal Prasad

Patel (PW-9).

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 filed before the jurisdictional criminal court and

the case was committed to the Court of Sessions, Korba, from

where the Additional Sessions Judge, Korba, 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 Cr.A.No.1305/2014

many as eleven witnesses and exhibited 16 documents. The

defence has examined three witnesses and exhibited one

document Ex.D-1 i.e. the statement of Kaushal Prasad Patel -

witness of memorandum and seizure.

5. The trial Court upon appreciation of oral and documentary evidence

available 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 first wife Sughni @ Savita, 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. Ashutosh Shukla, learned counsel appearing for the appellant,

would submit that the appellant has been convicted only on the

basis of the statement of Tejram (PW-2) who has seen the

deceased, the appellant and one more woman 15-20 days before

the date of incident, he is not the witness of last seen and even

otherwise, in absence of corroboration, only on the basis of the

evidence of Tejram (PW-2), the appellant cannot be convicted. The

trial Court has wrongly applied the provision contained in Section

106 of the Indian Evidence Act, 1872 (for short, 'the Evidence Act'),

as though it was the house owned by the appellant, but the

deceased was residing all alone in the said house and as such,

Section 106 of the Evidence Act would not be applicable.

7. Mr. Anmol Sharma, learned Panel Lawyer appearing for the State /

respondent, would support the impugned judgment and would Cr.A.No.1305/2014

submit that on the basis of the statement of Tejram (PW-2) applying

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. It is admitted position on record that death of deceased Sughni @

Savita was homicidal in nature by asphyxia due to obstruction of air

passages secondary to manual throttling. The said fact has been

proved by Dr. R.K. Divya (PW-4) who has conducted and proved

the postmortem report Ex.P-7. As such, the said finding recorded

by the 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 that death of the deceased was

homicidal in nature.

10. The trial Court has convicted the appellant on the basis of last seen

theory which has allegedly been seen by Tejram (PW-2). In his

statement before the Court in paragraph 2, he has stated that he

has seen the appellant, the deceased and one more woman, but

the exact date of seeing them together he could not spell out,

whereas in cross-examination, he has stated that prior to 15-20

days from the date of offence, he has seen the appellant along with

his two wives. As such, this witness (PW-2) could not mention the

exact date on which he had seen the appellant and the deceased

together and he could not clearly mention the date on which he had Cr.A.No.1305/2014

seen them both. However, second wife of the appellant - Divya

has not been examined.

11. In the matter of Navaneethakrishnan v. State by Inspector of

Police1, the Supreme Court has held that though the evidence of

last seen together could point to the guilt of the accused, but this

evidence alone cannot discharge the burden of establishing the

guilt of the accused beyond reasonable doubt and requires

corroboration, and observed in paragraph 22 as under: -

"22. PW 11 was able to identify all the three accused in the court itself by recapitulating his memory as those persons who came at the time when he was washing his car along with John Bosco and further that he had last seen all of them sitting in the Omni van on that day and his testimony to that effect remains intact even during the cross-examination in the light of the fact that the said witness has no enmity whatsoever against the appellants herein and he is an independent witness. Once the testimony of PW 11 is established and inspires full confidence, it is well established that it is the accused who were last seen with the deceased specially in the circumstances when there is nothing on record to show that they parted from the accused and since then no activity of the deceased can be traced and their dead bodies were recovered later on. It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone cannot discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration."

12. In the matter of State of Goa v. Sanjay Thakran and another2, their

Lordships of the Supreme Court found that there was considerable 1 (2018) 16 SCC 161 2 (2007) 3 SCC 755 Cr.A.No.1305/2014

time gap of approximately 8½ hours when the deceased was last

seen alive with the accused persons and their Lordships held that

there being a considerable time gap between the persons seen

together and the proximate time of crime, the circumstance of last

seen together, even if proved, cannot clinchingly fasten the guilt on

the accused.

13. In the instant case, the appellant and the deceased along with one

more woman (Divya) were seen together alive 15-20 days prior to

the date of offence (20-7-2013), whereas dead body of the

deceased was recovered on 26-7-2013. As such, there is

considerable time gap between last seen together and the time

when the dead body of the deceased was recovered. As per own

showing of Tejram (PW-2), there was time gap between last seen

together of the appellant, the deceased and one more woman

(Divya) i.e. 15-20 days prior to the date of offence and the time

when the dead body of the deceased was recovered. Therefore, it

cannot be held that only the appellant is the perpetrator of the

offence and in absence of corroboration, it cannot be held that the

appellant is the author of the crime.

14. The next circumstance pointed out by the learned counsel for the

appellant is, it is a house murder and applying Section 106 of the

Evidence Act, the appellant has been convicted.

15. It is admitted position on record that the house in question where

the deceased was found murdered was owned by the appellant, but

admittedly, the appellant, at that time, was residing with his second

wife Divya at Sector-5/A/1048, Balco Nagar, Korba, whereas the Cr.A.No.1305/2014

place of offence is Village Chuiya, which is very long from the place

where the appellant resides. It is stated at the Bar that the place of

incident and the place where the appellant resides i.e. Village

Chuiya are 40 Kms. long in distance.

16. Now, the question would be, whether the trial Court is justified in

holding that Section 106 of the Evidence Act would apply or not?

17. Section 106 of the Evidence Act 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."

18. 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.

19. In the matter of Shambhu Nath Mehra v. The State of Ajmer 3, 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

3 AIR 1956 SC 404 Cr.A.No.1305/2014

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.

20. 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 4 (2021) 10 SCC 725 Cr.A.No.1305/2014

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."

21. 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

5 AIR 1956 SC 460 Cr.A.No.1305/2014

absolve him from criminal liability, certain lies upon him.

22. 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.

23. In the instant case, the trial Court only on the basis of the evidence

of last seen together has found that there is evidence of last seen

against the appellant and further applying Section 106 of the

Evidence Act, convicted the appellant, whereas, 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, 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. Since the prosecution has

failed to discharge its primary burden of proving the case beyond

reasonable doubt and particularly in view of the fact that the

deceased was residing separately from her husband i.e. the

appellant herein in the house owned by the appellant at the time of

offence, Section 106 of the Evidence Act is not at all attracted. No

other circumstance has been found against the appellant.

24. In that view of the matter, we are unable to sustain conviction and

sentences imposed upon the appellant under Section 302 of the

IPC. Accordingly, the impugned judgment dated 28-11-2014

6 AIR 1974 SC 778 Cr.A.No.1305/2014

passed in Sessions Trial No.22/2014 by the 2nd Additional Sessions

Judge, Korba, is hereby set aside. The appellant stands acquitted

from the charge framed against him for the offence punishable

under Section 302 of the IPC and he shall be forthwith set at liberty,

unless he is required in connection with any other case.

25. The appeal is allowed.

                 Sd/-                                           Sd/-
          (Sanjay K. Agrawal)                         (Rakesh Mohan Pandey)
                Judge                                          Judge

Soma