Chattisgarh High Court
Chhote Lal Surya Vanshi vs State Of Chhattisgarh on 9 February, 2023
1
CRA No. 403 of 2014
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 403 of 2014
Chhote Lal Surya Vanshi S/o Jay Lal Suryavanshi, aged about 45
years, R/o Village Kotkharra, P.S. Gourela, District Bilaspur (C.G.)
---- Appellant
Versus
State of Chhattisgarh, through Arkshi Kendra, Gourela, District
Bilaspur (C.G.)
---- Respondent
For Appellant :- Mr. Vivek Sharma, Advocate.
For Respondent :- Mr. Arjit Tiwari, Panel Lawyer.
Division Bench
Hon'ble Shri Justice Sanjay K. Agrawal &
Hon'ble Shri Justice Radhakishan Agrawal
Judgment On Board
(09.02.2023)
Sanjay K. Agrawal, J
1. This criminal appeal under Section 374(2) of the CrPC has been
preferred by the appellant-accused against the impugned judgment of
conviction and order of sentence dated 26.02.2014 passed by the
learned Additional Sessions Judge, Pendra Road, District Bilaspur in
Sessions Trial No.17/2013 by which the appellant has been convicted
for offence under Section 302 of the IPC and sentenced to undergo
imprisonment for life and pay fine of ₹ 200/-, in default of payment of
fine, additional rigorous imprisonment for one month.
CRA No. 403 of 2014
2. Case of the prosecution, in brief, is that on 20.12.2012 at 3 a.m., in
Village Kotkharra, Police Station Gourela, District Bilaspur, the
appellant assaulted deceased-Nankun Bai by axe and caused her
death and thereby committed the aforesaid offence.
3. Further case of the prosecution is that on the date of the offence
appellant along with his wife-Nankun Bai, deceased, and Ku. Radha
(PW-3), aged about 3 years, grand-daughter went to sleep in the shop
adjoining to their house. In the morning, Nankun Bai-deceased was
found stained with blood and Ku. Radha (PW-3) was crying and the
appellant was not present. Deceased-Nankun was lying injured and
was taken to the Sanatorium Hospital, Gourela where she was
declared dead by the doctor and pursuant to which Merg Intimation
was registered vide Ex.P/11 and the dead body was sent for
postmortem which was conducted by Dr. B.S. Paikra (PW-11) and in
the postmortem report (Ex.P/8), Dr. B.S. Paikra (PW-11) opined the
cause of death to be head injury, fracture of skull bone and
Hemetoma and nature of death is homicidal. Pursuant to
memorandum statement of the appellant (Ex.P/5) axe was seized
vide Ex.P/6 and it was sent for FSL, but FSL report has not been
brought on record only query report (Ex.P/9) is there and as per the
query report injury could have been caused by the axe.
4. After due investigation, appellant was charge-sheeted for the
aforesaid offence before the Judicial Magistrate First Class, Pendra
Road and, thereafter, the case was committed to the Court of
Sessions for trial in accordance with law. The appellant / accused
CRA No. 403 of 2014
abjured his guilt and entered into defence stating that he has not
committed the offence.
5. In order to bring home the offence prosecution has examined as
many as 13 witnesses and exhibited 18 documents and defence in
support of his case has not examined any witnesses but exhibited one
document i.e. Ex. D/1.
6. The learned trial Court after appreciating the oral and documentary
evidence available on record convicted the appellant / accused for the
offence as mentioned in the opening paragraph of the judgment,
against which this appeal has been preferred questioning the
impugned judgment of conviction and order of sentence.
7. Mr. Vivek Sharma, learned counsel for the appellant, would submit
that the conviction is based on unreliable testimony of Shiv Lal
Suryavanshi (PW-2) and Ku. Radha (PW-3). He would further submit
that the statement of Shiv Lal Suryavanshi (PW-2) has improved upon
the case diary statement and that of Ku. Radha (PW-3) shows that
according to her, the appellant had assaulted with the help of club
whereas the deceased is found having sustained axe injury which
means that witness is not reliable and, as such, appellant deserves to
be acquitted and appeal deserves to be allowed.
8. On the other hand, learned counsel for the State, would support the
impugned judgment and submit that apart from the evidence of Shiv
Lal Suryavanshi (PW-2) and Ku. Radha (PW-3), the evidence on
record that in the night the appellant, his wife-deceased and the child
witness Ku. Radha (PW-3) were sleeping and thereafter the dead
CRA No. 403 of 2014
body of appellant's wife was found in the house of the appellant and
the appellant was absconding and the appellant has failed to explain
how his wife sustained homicidal death and therefore, there is
sufficient evidence against the appellant herein and the instant appeal
deserves to be dismissed.
9. We have heard learned counsel for the parties, considered their rival
submissions made herein-above and went through the records with
utmost circumspection.
10. The first question is as to whether the death of the deceased was
homicidal in nature, which the learned trial Court has recorded the
finding in affirmative on the basis of postmortem report (Ex.P/8) which
is proved by Dr. B.S. Paikara (PW-11) which is the 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.
11.The appellant has primarily been convicted on the ground that it is the
case of house murder and secondly Ku. Radha (PW-3) being the eye
witness has seen the incident and supported the case of the
prosecution. We will consider both incriminating piece of evidence
one by one.
12. First circumstance is that the trial Court has found proved that the
dead body was found in the house of the appellant and the appellant
and deceased were last seen together by Shiv Lal Suryavanshi (PW-
2) which has not been explained by the appellant in his statement
recorded under Section 313 of CrPC.
13. Now, the question would be, whether Section 106 of the Evidence Act
CRA No. 403 of 2014
would be applicable or not?
14. 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."
15. 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.
16. In the matter of Shambhu Nath Mehra v. The State of Ajmer 1,
their Lordships of the Supreme Court have held that the general rule
that in a criminal case the burden of proof is on the prosecution and
Section 106 of the Evidence Act is certainly not intended to relieve it
of that duty. On the contrary, it is designed to meet certain
exceptional cases in which it would be impossible, or at any rate
disproportionately 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
AIR 1956 SC 404
CRA No. 403 of 2014
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.
17.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 Bihar 2 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
(2021) 10 SCC 725
CRA No. 403 of 2014
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."
18. Similarly, the Supreme Court in the matter of Gurcharan Singh v.
State of Punjab 3, while considering the provisions contained in
Sections 103 & 106 of the Evidence Act, held that the burden of
proving a plea specially set up by an accused which may absolve him
from criminal liability, certainly lies upon him, but neither the
application of Section 103 nor that of 106 could, however, absolve the
prosecution from the duty of discharging its general or primary burden
of proving the prosecution case beyond reasonable doubt. It was
further held by their Lordships that it is only when the prosecution has
led evidence which, if believed, will sustain a conviction, or which
makes out a prima facie case, that the question arises of considering
facts of which the burden of proof may lie upon the accused. Their
Lordships also held that the burden of proving a plea specifically set
up by an accused, which may absolve him from criminal liability,
certain lies upon him.
19. 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 Bihar 4 and
AIR 1956 SC 460
CRA No. 403 of 2014
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.
20. 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?
21. Reverting to the facts of the present case in the light of the aforesaid
legal position, it is quite vivid that the prosecution has only established
that the death of the deceased Nankun Bai was homicidal in nature.
On the date of offence the appellant, deceased and Ku. Radha (PW-
3) were staying in the shop adjoining to the house of the appellant
and, as such, body of the deceased was found injured and the shop in
question was found opened and the appellant was also found
absconded. Though the death was found homicidal in nature and the
appellant was absconding but there is no evidence on record that the
appellant was seen running away from the area in question
immediately after the incident, as the shop in question is situated in a
residential area and the motive has also not been established that the
relationship between the appellant and deceased was not cordial.
Therefore, 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
AIR 1974 SC 778
CRA No. 403 of 2014
the burden of proof may lie upon the accused.
22. In these circumstances, the prosecution has relied upon the next
piece of evidence is that the eye witness Ku. Radha (PW-3), who is
minor girl, aged about 3 years, in her statement before the Court she
stated that when she woke up at morning, she had seen the appellant
assaulting her grand-mother by "lathi" which was informed to Shiv Lal
Suryavanshi (PW-2), her maternal uncle. According to Ku. Radha
(PW-3), appellant assaulted the deceased by lathi but from the
memorandum statement of the appellant vide Ex.P/5, axe has been
seized vide Ex.P/6 (property seizure memo). As such, the part of
statement of Ku. Radha (PW-3) that the appellant has assaulted the
deceased by lathi is not established.
23. Now, only the statement of Ku. Radha (PW-3) remains to be
considered whether she should be believed or not?
24. According to the statement of Ku. Radha (PW-3), she was wearing
frock on which also stains of blood were found and it was seized vide
Ex.P/4 and was sent to the FSL for forensic examination also, but the
FSL report was not brought on record. It is also not established that
the frock worn by Ku. Radha (PW-3) was stained with human blood or
not. As such, the statement of Ku. Radha (PW-3) is also not reliable
as no lathi was seized from the possession of the appellant and only
axe was seized but no human blood has been found. Therefore, it
would be unsafe to convict the appellant for offence under Section
302 of the IPC only on the basis statement of Ku. Radha (PW-3),
which is partly not reliable and it is not corroborated in respect to the
CRA No. 403 of 2014
weapon of the offence i.e. axe and blood on her clothes and only on
the basis of subsequent conduct which is relevant under Section 8 of
the Indian Evidence Act, the appellant cannot be convicted. In that
view of the matter, appellant is entitled for the benefit of doubt.
25. In view of the aforesaid analysis, we are unable to sustain conviction
and sentence imposed upon the appellant under Section 302 of the
IPC. Accordingly, the impugned judgment dated 26.02.2014 passed in
Sessions Trial No.17/2013 by the Additional Sessions Judge,
Pendraroad, District Bilaspur, 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 since the appellant is in
jail, he be released from jail forthwith, if not required in any other matter.
26. The appeal is allowed to the extent indicated herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Ankit
