Ramnarayan vs State Of Chhattisgarh
2023 Latest Caselaw 366 Chatt

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                                                                  NAFR
         HIGH COURT OF CHHATTISGARH AT BILASPUR
                        Criminal Appeal No. 8 of 2014

                   Judgment Reserved on : 09.01.2023
                   Judgment delivered on : 18.01.2023


Ramnarayan, S/o. Amar Sai Bargah, Aged About 31 Years, By Caste-
Bargah, Occupation- Agriculturist, Police Station- Ambikapur, Distt.
Surguja, Chhattisgarh
                                                   ---Appellant
                                 Versus

State Of Chhattisgarh, Through Police Station- Ambikapur, Distt.
Surguja, Chhattisgarh

                                                 ---Respondent


For Appellant           :     Mr. Bhaskar Payashi and Mr. Rohitashva
                              Singh, Advocates
For State-Respondent :        Ms. Ruchi Nagar, Dy. Govt. Advocate


             Hon'ble Shri Justice Sanjay K. Agrawal
           Hon'ble Shri Justice Rakesh Mohan Pandey

                            C.A.V Judgment

Sanjay K. Agrawal, J.

1. The appellant has preferred this appeal under Section 374(2) of

Cr.P.C. questioning the impugned judgment dated 27.09.2013

passed in Sessions Trial No.69/2012, by which the Sessions

Judge, Sarguja has convicted the appellant herein under

Section 302 of I.P.C. for murder of his wife Kunjwati and

sentenced to life imprisonment with fine of Rs.1000/- and in

default of payment of fine amount, 6 months simple

imprisonment.

2. Case of the prosecution, in short, is that on 09.01.2012 at 7:00

P.M. at village Kerakachhar, the appellant assaulted his wife by

hand & fist by which she suffered grievous injuries and

succumbed to death in the hospital; thereby the offence has

been committed.

3. Further case of the prosecution, in brief, is that marriage of the

deceased was solemnized with the appellant as per Hindu

rituals and out of their wedlock, they were having three

daughters and one son and son was staying with his

grandfather Amar Say (PW-2) and three daughters were staying

with appellant and deceased. It is further case of the

prosecution that brother of the appellant Mathura (PW-8)

informed Sohan Say (PW-4) father-in-law of the appellant and

father of the deceased that her daughter is lying unconscious

near the house and immediately thereafter after getting

information, Sohan Say reached to the village Kerakachhar

along with his sister Nanki and seen her daughter lying

unconscious in the courtyard having suffered injuries on his

temple. Thereafter, immediately she was admitted to the District

Hospital, Ambikapur wherein she was declared dead by the

Doctor. On the recommendation of Panchas, the dead body

was subjected to post mortem by Dr. Manju Ekka (PW-11) and

according to the post-mortem report Ex.P-20, the deceased died

on account of injuries suffered by her. Thereafter, after due

investigation, the appellant was charge sheeted before the Chief

Judicial Magistrate, Ambikapur, which was committed to the

Court of Sessions for trial in accordance with law, in which the

appellant abjured his guilt and stated that he has not committed

the offence.

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

many as 11 witnesses and exhibited 20 documents and the

appellant-accused in support of his defence has neither

examined any witness nor exhibited any document.

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

evidence on record, convicted the appellant herein for offence

under Section 302 of I.P.C. and sentenced as above, against

which the present appeal has been preferred.

6. Mr. Bhaskar Payashi, learned counsel for the appellant would

submit that the prosecution has failed to bring home the offence

beyond reasonable doubt and there is no direct and

circumstantial evidence to connect the appellant with the crime

in question, as the dead body was found outside the house of

appellant and he cannot be held responsible. He further submits

that the appellant was not there in the house as he was gone to

Ambikapur as per the statement of his daughter Anjali (PW-6)

and statements of Sohan Say (PW-4) and Mathura (PW-8). He

also submits that the prosecution has also not proved the motive

for the offence and there is no seizure made from the appellant

and the death is not homicidal in nature, as such, the conviction

of the appellant is liable to be set aside and the appeal deserves

to be allowed.

7. Ms. Ruchi Nagar, learned State counsel would submit that it is a

case of house murder, therefore, provision of Section 106 of the

Evidence Act is applicable and the appellant was required to

explain as to under what circumstances Kunjwati died in his

house. She further submits that appellant has failed to explain

the death of deceased Kunjwati and therefore, the conviction of

the appellant for offence under Section 302 of I.P.C. is well

merited and the appeal deserves to be dismissed.

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

rival submissions made herein-above and went through the

records with utmost circumspection.

9. The first question for consideration is whether the death of

deceased Kunjwati was homicidal in nature ?

10. Considering the medical evidence of Dr. Manju Ekka (PW-11)

who has proved the post-mortem report (Ex.P-20) and further

considering the nature of injury, which the deceased was found

to have suffered i.e. fracture of left 3 rd, 7th and in right side 5th, 8th

rib bones, right lung was found ruptured and heart & cover of

heart was also found ruptured and liver was also found ruptured,

we are of the considered opinion that the death of the deceased

was homicidal in nature. It is held accordingly.

11. Now, the next question is whether the appellant is the author of

the crime, which the trial Court has answered in affirmative

relying upon the circumstantial evidence available on record.

The trial Court has convicted the appellant with the aid of

Section 106 of the Evidence Act holding that it is house murder,

which the appellant was required to offer explanation in the

statement under Section 313 of Cr.P.C., which he has failed to

offer and consequently, finding other circumstance established

proceeded to convict him for offence under Section 302 of I.P.C.

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 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

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 1 AIR 1956 SC 404

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 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 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."

16. Similarly, the Supreme Court in the matter of Gurcharan Singh

v. State of Punjab3, 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 2 (2021) 10 SCC 725 3 AIR 1956 SC 460

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 Bihar4 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.

18. In the matter of Harijan Bhala Teja v. State of Gujarat 5, the

Supreme Court has held that where the postmortem report

establishes homicidal nature of death and since the accused

only was staying with his wife at time of her death, it is for the

accused to show has to in what manner she died and relying

upon Section 106 of the Indian Evidence Act in paragraph 19 of

the report it was held as under: -

4 AIR 1974 SC 778 5 AIR 2016 SC 2065

"19. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since it is proved on the record that it was only the appellant who was staying with his wife at the time of her death, it is for him to show as to in what manner she died, particularly, when the prosecution has successfully proved that she died homicidal death."

19. Likewise, in the matter of Gajanan Dashrath Kharate v. State

of Maharashtra6, where the accused (Gajanan Dashrath

Kharate) alleged to have killed his father and accused has not

offered any explanation for homicidal death of his father,

conviction was affirmed by the Supreme Court by holding as

under in paragraph 14: -

"14. Upon appreciation of oral evidence and the circumstance of the recovery of blood stained clothes of the accused and the conduct of the accused in not offering any explanation for the homicidal death of his father, by concurrent findings, the trial court and the High Court rightly convicted the appellant-accused under Section 302 IPC and we do not find any reason to interfere with the impugned judgment."

20. Reverting to the facts of this case, in our opinion, it is already

held that the prosecution has proved the death to be homicidal

in nature and furthermore it is evident on record that on the date

of incident, in the house in question, the appellant used to stay

with his wife (deceased) and his three daughters and one son,

but prior to date of incident, son of appellant & deceased

Deepak was residing with maternal grand-father Sohan Say

(PW-4) and all three daughters, at that point of time, were taken

6 AIR 2016 SC 1255

by Mathura (PW-8) for fest, as that was a day of Chherta festival

(local festival), as such, at the time of incident, apart from the

appellant and deceased, no one was available. It is further case

of the prosecution that at that time when the incident took place,

as per the statement of brother of deceased Mathura (PW-8),

when he first visited the house of the deceased at 3:30 p.m., the

appellant was not found in the house as he had gone to nearby

place Ambikapur, which is 10 km away from the place of

incident, but when he returned to house in second time, then he

found his sister-in-law / wife of deceased lying injured in the

courtyard and the house was locked, but he did not trace out his

brother and went to the house of the father of the deceased

Sohan Say (PW-4) at nearby village Bakmer. Furthermore, the

appellant was absconding for two days and did not take

cognizance of his wife, which is a relevant fact under Section 8

of the Evidence Act. As such, the place of incident is house of

the appellant by which it is established that on the date of

incident, deceased Kunjwati Bai suffered injuries in the house

of the appellant and her death was homicidal in nature. The

deceased was his wife and the appellant was required to explain

as to how the deceased/wife suffered such serious injuries, as

she was found in the courtyard of his house at the time of

incident, which he has admittedly not explained in the statement

under Section 313 of Cr.P.C. In our opinion, the above chain of

circumstances is complete and leads only to one conclusion that

it was the accused/appellant who caused the death of the

deceased and he alone committed the murder of the deceased.

The view taken by the learned trial Court that the appellant is

the author of the crime is a pure finding of fact based on

evidence available on record and we are of the opinion that in

the present case, the only view possible was the one taken by

the trial Court.

21. On the basis of aforesaid discussion, we are of the view that the

appeal deserves to be and is accordingly dismissed.

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