Pandara vs State Of Chhattisgarh
2023 Latest Caselaw 993 Chatt

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                                                                   NAFR
         HIGH COURT OF CHHATTISGARH AT BILASPUR
                     Criminal Appeal No. 525 of 2014


Pandara, S/o. Bhawara Korwa, Aged About 51 Years, R/o. Village
Banshipur, Police Station- Sitapur, Distt. Surguja, Chhattisgarh
                                                         ---Appellant

                                 Versus

State Of Chhattisgarh, Through Police Station- Sitapur Distt. Sarguja,
Chhattisgarh

                                                        ---Respondent


For Appellant           :      Mr. Anupam Dubey, Advocate
For State-Respondent :         Mr. Wasim Miyan, Panel Lawyer


                            Division Bench

             Hon'ble Shri Justice Sanjay K. Agrawal
            Hon'ble Shri Justice Radhakishan Agrawal

                        (Judgment On Board)

                             (16.02.2023)

Sanjay K. Agrawal, J.

1. This criminal appeal filed under Section 374(2) of Cr.P.C. is

directed against the impugned judgment dated 31.03.2014,

passed by the learned First Additional Sessions Judge, Sarguja,

Ambikapur, in Sessions Trial No.136/2013, by which, the

appellant herein has been convicted for the offence under

Section 302 of I.P.C. and sentenced to life imprisonment with

fine of Rs.500/- in default of payment of fine, 10 days additional

rigorous imprisonment.

2. Case of the prosecution, in short, is that on 30.12.2012 in

between 10-11 p.m. at village Banshipur, P.S. Sitapur, the

appellant assaulted his wife, by which she suffered grievous

injury and died; thereby the offence has been committed.

Further case of the prosecution, in brief, is that on the date of

offence, deceased Kapani @ Pakri @ Beehi (wife of the

appellant) did not cook food and on being asked why she has

not cooked food, she started quarreling and on that account, the

appellant assaulted her by blunt side of Axe, by which she

suffered grievous injury and died. Thereafter, Ramkripal Sahu

has informed Sanjay Ekka and alongwith Babulal, they reported

the matter to the Police Station Sitapur, pursuant to which, merg

was registered and thereafter accused absconded from the

spot. Nazari-naksha was prepared by the police and after

panchnama was conducted, dead body was sent for post

mortem to the Community Health Center, Sitapur, which was

conducted by Dr. S.N.Paikara (PW-7), who has proved the post

mortem report vide Ex.P-7 and query report is Ex.P-2(A).

Thereafter, on the memorandum of the appellant (Ex.P-4), Axe

was recovered vide Ex.P-5, which was not sent for FSL, but

according to query report, the injury could have been caused by

the same. After due investigation, the appellant was charge-

sheeted for the aforesaid offence before the jurisdictional

criminal court and ultimately it was committed to the Court of

Sessions for trial in accordance with law, in which the appellant

abjured his guilt and entered into defence.

3. In order to bring home the offence, prosecution examined as

many as 14 witnesses and exhibited 16 documents; whereas

the appellant/accused in support of his defence has neither

examined any witness nor exhibited any document.

4. The trial Court, after appreciation of oral and documentary

evidence on record, convicted and sentenced the appellant for

the offence under Section 302 of I.P.C., against which the

present appeal has been preferred.

5. Mr. Anupam Dubey, learned counsel for the appellant would

submit that only with the aid of Section 106 of Indian Evidence

Act, the appellant has been convicted and no other piece of

evidence has been found established by the prosecution and

even the memorandum has been found established but that has

not been supported by the panch witness Nand Kumar (PW-4),

as such, the appeal deserves to be allowed.

6. Mr. Wasim Miyan, learned State counsel would submit that the

prosecution has been able to prove the offence beyond

reasonable doubt and the learned trial Court has rightly

convicted the appellant for the offence under Section 302 of

I.P.C, as such, the instant appeal deserves to be dismissed.

7. We have heard learned counsel for the parties, considered their

rival submissions made herein-above and went through the

records with utmost circumspection.

8. The first question as to whether the death of the deceased

Kapani @ Pakri was homicidal in nature, has been answered by

the trial Court in affirmative holding the death to be homicidal in

nature, relying upon the statement of Dr. S.N.Paikara (PW-7)

who has proved the post-mortem report Ex.P-7, according to

which, death occurred due to coma owing to head injury. In our

considered opinion, such finding recorded by the trial Court is a

correct finding of fact based on evidence available on record, it

is neither perverse nor contrary to the record and accordingly

we hereby affirm the said finding.

9. The trial Court has basically relied upon two circumstances to

convict the appellant. Firstly, pursuant to the memorandum

statement of the appellant (Ex.P-4), Tangi has been seized vide

Ex.P-5, which has been proved by Investigating Officer-

T.R.Nagwansi (PW-14) and also villager Nand Kumar (PW-4),

however, it is quite vivid from the record that blood-smeared

Tangi was not sent for FSL and it is nowhere established that it

was human blood.

10. In the matter of Balwan Singh v. State of Chhattisgarh &

Anr.1 the Supreme Court has held that if the recovery of

bloodstained articles is proved beyond reasonable doubt by the

prosecution, then it may be sufficient if the prosecution shows

that the blood found on the articles is of human origin, even

though the blood group is not proved and held as under :-

1 (2019) 7 SCC 781

"24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution."

In view of the decision of Balwan Singh (supra), it has not

been established that the weapon of the offence was stained

with human blood, as such, recovery of Axe is of no use to the

prosecution.

11. The next circumstance which has been found proved is that it is

a house murder and appellant has not explained in his

statement under Section 313 of Cr.P.C., which was required to

be explained by virtue of Section 106 of the Indian Evidence

Act.

12. 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."

13. 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.

14. 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 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 2 AIR 1956 SC 404

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.

15. 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 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

3 (2021) 10 SCC 725

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."

16. 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 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.

17. 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.

4 AIR 1956 SC 460 5 AIR 1974 SC 778

18. 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 ?

19. A careful perusal of the record would show that admittedly

though the deceased was the wife of the appellant but except

self-serving statement of Sanjay Ekka (PW-13), there is no

evidence on record that on the date of offence, the appellant

and deceased both were living in the house. Sanjay Ekka (PW-

13) has simply stated that the appellant and deceased used to

live together in the house, but whether on the date of offence

they were living as husband & wife has not been established.

There is no evidence available on record to hold that they have

stayed together in the same house on the date of offence, as

the appellant was not in the house in the morning, as such,

except the death of deceased to be homicidal in nature, nothing

has been established. Therefore, the prosecution has failed to

discharge the primary burden of proving its case beyond

reasonable doubt.

20. 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 in view of above, Section 106 of

the Evidence Act cannot be invoked and the appellant cannot be

held guilty of the offence under Section 302 of the I.P.C. 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. Even otherwise, the extra judicial

confession made to Ramsay (PW-9) is also not established.

21. In that view of the matter, it is held that the prosecution has only

proved the homicidal death of the deceased and even motive

has not been established and the extra judicial confession has

also not been established and the prosecution has failed to

prove the primary burden of proving case beyond reasonable

doubt, as held by the Supreme Court in the aforesaid judgments

(supra).

22. In view of the aforesaid discussion, the appellant is entitled for

acquittal on the ground of benefit of doubt. Accordingly, the

impugned judgment dated 31.03.2014 is set aside. The

appellant stands acquitted from the charge framed against him

for the offence punishable under Section 302 of I.P.C. and he

shall be forthwith set at liberty, unless he is required in

connection with any other case.

23. The appeal is allowed to the extent indicated herein-above.

                     Sd/-                                 Sd/-
             (Sanjay K. Agrawal)                (Radhakishan Agrawal)
                  Judge                                Judge
Ashok