Chattisgarh High Court
Dhaniram Gawade vs State Of Chhattisgarh on 1 July, 2024
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Neutral Citation
2024:CGHC:23011-DB
1
CRA No. 711 of 2018
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No.711 of 2018
Dhaniram Gawade S/o Sattesingh Gawade Aged About 45
Years R/o Village Kanhargaon, P. S. Bhanupratappur, Present
Address Village Hotkarra, District North Bastar Kanker
Chhattisgarh
---- Appellant
Versus
State Of Chhattisgarh Through Police Station Korar, District
North Bastar Kanker Chhattisgarh
---- Respondent
For Appellant :- Mr. Adhiraj Surana and Mr. P. K. Tulsyan,
Advocates
For Respondent :- Mr. HAPS Bhatia, Panel Lawyer
Division Bench
Hon'ble Shri Justice Sanjay K. Agrawal &
Hon'ble Shri Justice Sanjay Agrawal
Judgment On Board
(01.07.2024)
Sanjay K. Agrawal, J
1. Invoking criminal appellate jurisdiction of this Court, the
present criminal appeal under Section 374(2) of CrPC has been
filed by the appellant herein calling in question the legality,
validity and correctness of the judgment of conviction and
order of sentence dated 09.03.2018 passed by the learned
Sessions Judge, Uttar Bastar, Kanker, Chhattisgarh in
Sessions Trial No.119/2015, whereby the appellant has been
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convicted for offence punishable under Section 302 of the IPC
and sentenced to undergo imprisonment for life and pay fine of
₹ 100/-; in default of payment of fine to further undergo
additional imprisonment for one month.
2. The case of the prosecution, in a nutshell, is that in between 8
PM of 28.09.2009 to 11 PM of 29.09.2009 at village Hatcarra,
Police Station Korar, District Uttar Bastar-Kanker,
Chhattisgarh, the appellant assaulted his wife Prem Bai (now
deceased) by sharp-edged weapon, by which, she suffered
grievous injuries and died. Thereafter, Mansaro Bai (PW-1),
mother of the deceased-Prem Bai reported the matter to the
police, pursuant to which, merg intimation and FIR were
registered vide Exs.P/1 & P/11, respectively. Spot Map was
prepared vide Ex.P/6. Inquest proceedings (Ex.P/5) were
conducted and the dead body of the deceased was sent for
postmortem. As per postmortem report (Ex.P/12) proved by Dr.
D. Prashant Kumar (PW-15), cause of death was due to severe
haemorrhage and shock produced by the extensive injuries
over the skull; simultaneously coma due to injury to the brain
caused by the chop wound, which is stated to be homicidal in
nature. Articles i.e. Sari & Blouse of the deceased-Prem Bai,
Plain soil, bloodstained soil, broken bangles, sweater and Full
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shirt with bloodstains were seized from the spot vide Exs.P/2,
P-7 & P-8.
3. After due investigation, the appellant was charge-sheeted for
the aforesaid offence and the case was committed to the Court
of Sessions for trial in accordance with law. The
appellant/accused abjured his guilt and entered into defence.
4. During the course of trial, in order to bring home the offence,
the prosecution has examined as many as 15 witnesses and
exhibited 14 documents, whereas the appellant in his defence
has neither examined any witness nor exhibited any
document. Statement of the appellant was recorded under
Section 313 of Cr.P.C, in which, he denied the circumstances
appearing against him in the evidence brought on record,
pleaded innocence and false implication.
5. The learned trial Court, after appreciating the oral and
documentary evidence available on record, convicted the
appellant for the commission of offence and sentenced him
thereunder, as mentioned in the opening paragraph of the
judgment, against which, this appeal has been preferred by the
appellant herein questioning the impugned judgment of
conviction and order of sentence.
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6. Mr. Adhiraj Surana and Mr. P. K. Tulsyan, learned counsel
appearing for the appellant, submits that the trial Court is
absolutely unjustified in convicting the appellant for aforesaid
offence as the prosecution has failed to prove the offence
against the appellant beyond reasonable doubt and he has
falsely been implicated in crime in question. It is further
submitted that as the deceased-Prem Bai was not the legally
wedded wife of the appellant and was not living with the
appellant including the fact that the deadbody of the deceased-
Prem Bai was found in her house, as such, the trial Court is
absolutely unjustified in invoking Section 106 of the Indian
Evidence Act, 1872 (for brevity "the IEA") to convict the
appellant under Section 302 of the IPC, merely on the basis of
subsequent conduct of the appellant-accused, absconding for
a period of six years, which is relevant piece of evidence under
Section 8 of the IEA. Therefore, the impugned judgment of
conviction and order of sentence passed against the appellant
is liable to be set aside and the appellant is entitled for
acquittal on the basis of benefit of doubt and the appeal
deserves to be allowed.
7. On the other hand, Mr. HAPS Bhatia, learned State counsel,
supports the impugned judgment of conviction and order of
sentence and submits that prosecution has been able to prove
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the offence beyond reasonable doubt and the trial Court has
rightly convicted the appellant for the aforesaid offence. Thus,
the instant appeal deserves to be dismissed.
8. We have heard learned counsel for the parties, considered their
rival submissions made herein-above and gone through the
records with utmost circumspection.
9. Now, the first question is, whether the death of the deceased
was homicidal in nature?
10. In this regard the question of homicidal death has been
answered by the trial Court in affirmative that the death of
Prem Bai (deceased) was homicidal in nature relying upon the
postmortem report (Ex.P/12) proved by Dr. D. Prashant Kumar
(PW-15) which, in our considered opinion, is a correct finding
of fact based on evidence available on record and it is neither
perverse nor contrary to the record. Accordingly, we hereby
affirm the said finding of the trial Court.
11. Now, the next question for consideration would be whether the
appellant has assaulted the deceased-Prem Bai and he is the
author of the alleged crime ?
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12. The incriminating circumstances, to which, the learned trial
Court has relied upon at paragraphs 20 & 21 of the impugned
judgment of conviction and order of sentence, are as under:-
20. "बचाव के वारा रि परीषण मं सािषयं से पूछे गए र्ऩं के आधार पर यह क िकया
गया है िक आरोपी को रेमबाई की ह्या कर े हुए िकसी ्यि' ने नहं देखा है एवं मग सूचना
आरोपी के नाम से नहं ि.खाई गई है, ऐसी ि12ि मं आरोपी को संदेह का .ाभ िदया जाना
चािहए, िक् ु बचाव का उ' क 1वीकार िकये जाने यो्य नहं है, ्योिक आरोपी एवं
मृि का एक ही घर मं पि प्नी के ूप मं रह े 2े, घटना दशहरा ्यौहार के िदन की है, जहां
पु .ा दहन के समय आरोपी और उसकी प्नी सा2 मं देखे गए 2े, उसके उपरा् मृि का
अपने घर आ गई, जहां रािA मं आरोपी के वारा उसकी ह्या कर दी गई 2ा गांव से वह फरार
हो गया, घटना िदनांक 28.09.2009 की है 2ा आरपोपी घटना कािर करने के पचा
िदनांक 15.07.2015 क अ2ा करीब 6 वष क फरार रहा, अपने फरार रहने के संबंध मे
उसने कोई सा्य अ2वा 1पटीकरण र1 ु नहं िकया है िक वह घटना िदनांक की रािA को
उसकी प्नी की ह्या हो जाने के पचा से ्यं फरार रहा, जबिक आरोपी उसी घर मं
मृि का के सा2 रह ा 2ा, ऐसी ि12ि मं यिद आरोपी के वारा अपनी प्नी की ह्या नहं की
गई हो ी ो वह िनिच ही सामने आकर अपनी िनदHिष ा के बारे मे क2न कर ा, ंक ु वह
अपनी प्नी की ह्या करने के पचा .गा ार 6 वषJ क फरार रहा एवं उसके पचा पुि.स
के वारा उसे माम.े मं िगर् ार िकया गया है। ऐसी ि12ि मं जबिक रेमबाई की ह्या उसके
घर के अंदर की गई है, वहां चषुदशM साषी का होना संभव नहं है, जबिक आरोपी एवं उसकी
प्नी के अ.ावा घर मं अ्य कोई और ्यि' नहं रह ा।
21. बचाव की ओर से माननीय उच ्याया.य के ्यायृटां धमQवर राम िवूध 1टेट
ऑफ छ. ग. 2017 (3) सी .जी .ए.. जे . 302(डीबी) एवं गंगाधर साहू िवूध 1टेट ऑफ छ.
ग. 2017 (2)सी. जी. ए.. जे. 469 (डीबी) र1 ु िकये गए है, िजनके आधार पर बचाव की
ओर से क िकया जा रहा है िक उ' रकरण मं आरोपी को आि.त करने का कोई सा्य नहं
है, िजसके कारण उपरो' दोनं ्यायृटां ं का .ाभ िदया जाकर आरोपी को दोषमु' िकया
जाए, ंक ु बचाव की ओर से र1 ु उपरो' ्यायृटां का .ाभ इस रकरण के आरोपी को
इसि.ए नहं िदया जा सक ा ्यंिक घटना िदनांक को आरोपी 2ा उसकी मृ प्नी एक
सा2 एक ही घर मं रह े 2े 2ा रेमब ी की ह्या होने के पचा आरोपी .गा ार 6 वषJ क
फरार 2ा, िजसे पुि.स के वारा िदनांक 15.07.2015 को िगर् ार िकया गया, ऐसी ि12ि मं
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जबिक आरोपी के वारा अपने फरार होने के संबंध मं कोई 1पिटकरण अ2वा सा्य पेश नहं
िकया गया है 2ा उसकी प्नी रेमबाई की मृ्यु होने के पशचा भी उसके वारा ऐसी कोई
िरपोट या िशकाय कहं भी नहं िकया गया िक उसकी प्नी की ह्या िकसी ्यि' के वारा
कर दी गई है, अ ः उपरो' दोनं ्यायृटा ं के ्य एवं पिरि12ि यां इस माम.े मे िभन
होने के कारण आरोपी धनीराम को उ' ्यायृटा ं का .ाभ िम. सक ा है। रकरण मं
परीिष सािषयं के रि परीषण मं ऐसा कोई ्य सामने नहं आया है, िजससे आरोपी को
संदेह का .ाभ िदया जा सके। "
13. The trial Court has invoked Section 106 of the IEA to base the
conviction of the appellant after answering the question in
affirmative that the death of the deceased was homicidal in
nature. Now, the question is whether the trial court has rightly
invoked Section 106 of the Evidence Act to convict the
appellant ?
14. At this stage, it would be appropriate to quote Section 106 of
the Evidence Act, which 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. The said 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
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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. Recently, in the matter of Balvir Singh v. State of
Uttarakhand1, their Lordships of the Supreme Court,
reviewing its earlier decision on the point of Section 106 of the
Evidence Act, have held that Section 106 has to be applied in
criminal cases with care and caution and held in paragraphs
41 to 48 as under:-
"41. Thus, from the aforesaid decisions of this
Court, it is evident that the court should apply
Section 106 of the Evidence Act in criminal cases
with care and caution. It cannot be said that it has
no application to criminal cases. The ordinary rule
which applies to criminal trials in this country that
the onus lies on the prosecution to prove the guilt
of the accused is not in any way modified by the
provisions contained in Section 106 of the Evidence
Act.
42. Section 106 cannot be invoked to make up the
inability of the prosecution to produce evidence of
circumstances pointing to the guilt of the accused.
This section cannot be used to support a conviction
unless the prosecution has discharged the onus by
proving all the elements necessary to establish the
offence. It does not absolve the prosecution from
the duty of proving that a crime was committed
even though it is a matter specifically within the
knowledge of the accused and it does not throw the
2023 SCC Online SC 1261
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burden of the accused to show that no crime was
committed. To infer the guilt of the accused from
absence of reasonable explanation in a case where
the other circumstances are not by themselves
enough to call for his explanation is to relieve the
prosecution of its legitimate burden. So, until a
prima facie case is established by such evidence,
the onus does not shift to the accused.
43. Section 106 obviously refers to cases where
the guilt of the accused is established on the
evidence produced by the prosecution unless the
accused is able to prove some other facts especially
within his knowledge which would render the
evidence of the prosecution nugatory. If in such a
situation, the accused gives an explanation which
may be reasonably true in the proved
circumstances, the accused gets the benefit of
reasonable doubt though he may not be able to
prove beyond reasonable doubt the truth of the
explanation. But if the accused in such a case does
not give any explanation at all or gives a false or
unacceptable explanation, this by itself is a
circumstance which may well turn the scale against
him. In the language of Prof. Glanville Williams:
"All that the shifting of the evidential
burden does at the final stage of the case is
to allow the jury (Court) to take into
account the silence of the accused or the
absence of satisfactory explanation
appearing from his evidence."
44. To recapitulate the foregoing : What lies at the
bottom of the various rules shifting the evidential
burden or burden of introducing evidence in proof
of one's case as opposed to the persuasive burden
or burden of proof, i.e., of proving all the issues
remaining with the prosecution and which never
shift is the idea that it is impossible for the
prosecution to give wholly convincing evidence on
certain issues from its own hand and it is therefore
for the accused to give evidence on them if he
wishes to escape. Positive facts must always be
proved by the prosecution. But the same rule
cannot always apply to negative facts. It is not for
the prosecution to anticipate and eliminate all
possible defences or circumstances which may
exonerate an accused. Again, when a person does
not act with some intention other than that which
the character and circumstances of the act suggest,
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it is not for the prosecution to eliminate all the
other possible intentions. If the accused had a
different intention that is a fact especially within his
knowledge and which he must prove (see Professor
Glanville Williams--Proof of Guilt, Ch. 7, page 127
and following) and the interesting discussion--para
527 negative averments and para 528--"require
affirmative counter-evidence" at page 438 and foil,
of Kenny's outlines of Criminal Law, 17th Edn.
1958.
45. But Section 106 has no application to cases
where the fact in question having regard to its
nature is such as to be capable of being known not
only by the accused but also by others if they
happened to be present when it took place. From
the illustrations appended to the section, it is clear
that an intention not apparent from the character
and circumstances of the act must be established
as especially within the knowledge of the person
whose act is in question and the fact that a person
found travelling without a ticket was possessed of a
ticket at a stage prior in point of time to his being
found without one, must be especially within the
knowledge of the traveler himself:see Section 106
of the Indian Evidence Act, illustrations (a) and (b).
46. A manifest distinction exists between the
burden of proof and the burden of going forward
with the evidence. Generally, the burden of proof
upon any affirmative proposition necessary to be
established as the foundation of an issue does not
shift, but the burden of evidence or the burden of
explanation may shift from one side to the other
according to the testimony. Thus, if the prosecution
has offered evidence which if believed by the court
would convince them of the accused's guilt beyond
a reasonable doubt, the accused is in a position
where he should go forward with counter-vailing
evidence if he has such evidence. When facts are
peculiarly within the knowledge of the accused, the
burden is on him to present evidence of such facts,
whether the proposition is an affirmative or negative
one. He is not required to do so even though a
prima facie case has been established, for the court
must still find that he is guilty beyond a reasonable
doubt before it can convict. However, the accused's
failure to present evidence on his behalf may be
regarded by the court as confirming the conclusion
indicated by the evidence presented by the
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prosecution or as confirming presumptions which
might have been rebutted. Although not legally
required to produce evidence on his own behalf, the
accused may therefore as a practical matter find it
essential to go forward with proof. This does not
alter the burden of proof resting upon the
prosecution (Wharton's Criminal Evidence, 12th
Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Leland v.
State reported in 343 U.S. 790=96 L.Ed. 1302,
Raffel v. U.S. reported in 271 U.S. 294=70 L.Ed.
1054.
WHAT IS "PRIMA FACIE CASE" IN THE
CONTEXT OF SECTION 106 OF THE EVIDENCE
ACT?
47. The Latin expression prima facie means "at
first sight", "at first view", or "based on first
impression". According, to Webster's Third
International Dictionary (1961 Edn.), "prima facie
case" means a case established by "prima facie
evidence" which in turn means "evi-Ideuce
sufficient in law to raise a presumption of fact or
establish the fact in question unless rebutted". In
both civil and criminal law, the term is used to
denote that, upon initial examination, a legal claim
has sufficient evidence to proceed to trial or
judgment. In most legal proceedings, one party
(typically, the plaintiff or the prosecutor) has a
burden of proof, which requires them to present
prima facie evidence for each element of the charges
against the defendant. If they cannot present prima
facie evidence, or if an opposing party introduces
contradictory evidence, the initial claim may be
dismissed without any need for a response by other
parties.
48. Section 106 of the Evidence Act would apply to
cases where the prosecution could be said to have
succeeded in proving facts from which a reasonable
inference can be drawn regarding death."
17. Similarly, In the matter of Anees v. The State Govt. of NCT 2,
their Lordships of the Supreme Court, reviewing its earlier
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decision on the point of Section 106 of the Evidence Act, have
held in paragraphs 47 to 55 as under:-
"47. But Section 106 of the Evidence Act has
no application to cases where the fact in
question, having regard to its nature, is such
as to be capable of being known not only to
the accused but also to others, if they
happened to be present when it took place.
The intention underlying the act or conduct of
any individual is seldom a matter which can
be conclusively established; it is indeed only
known to the person in whose mind the
intention is conceived. Therefore, if the
prosecution has established that the
character and circumstance of an act suggest
that it was done with a particular intention,
then under illustration (a) to this section, it
may be assumed that he had that intention,
unless he proves the contrary.
48. A manifest distinction exists between the
burden of proof and the burden of going
forward with the evidence. Generally, the
burden of proof upon any affirmative
proposition necessary to be established as the
foundation of an issue does not shift, but the
burden of evidence or the burden of
explanation may shift from one side to the
other according to the testimony. Thus, if the
prosecution has offered evidence, which if
believed by the court, would convince them of
the accused's guilt beyond a reasonable
doubt, the accused, if in a position, should go
forward with counter-vailing evidence, if he
has such evidence. When facts are peculiarly
within the knowledge of the accused, the
burden is on him to present evidence of such
facts, whether the proposition is an
affirmative or negative one. He is not required
to do so even though a prima facie case has
been established, for the court must still find
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that he is guilty beyond a reasonable doubt
before it can convict. However, the accused's
failure to present evidence on his behalf may
be regarded by the court as confirming the
conclusion indicated by the evidence
presented by the prosecution or as confirming
presumptions which might arise therefrom.
Although not legally required to produce
evidence on his own behalf, the accused may,
therefore, as a practical matter find it
essential to go forward with proof. This does
not alter the burden of proof resting upon the
prosecution [See: Balvir Singh v. State of
Uttarakhand, 2023 SCC OnLine 1261]
ii. What is "prima facie case" (foundational
facts) in the context of Section 106 of the
Evidence Act?
49. The Latin expression prima facie means
"at first sight", "at first view", or "based on
first impression". According to Webster's Third
International Dictionary (1961 Edn.), "prima
facie case" means a case established by
"prima facie evidence" which in turn means
"evidence sufficient in law to raise a
presumption of fact or establish the fact in
question unless rebutted". In both civil and
criminal law, the term is used to denote that,
upon initial examination, a legal claim has
sufficient evidence to proceed to trial or
judgment. In most legal proceedings, one
party (typically, the plaintiff or the prosecutor)
has a burden of proof, which requires them to
present prima facie evidence for each element
of the case or charges against the defendant.
If they cannot present prima facie evidence,
the initial claim may be dismissed without
any need for a response by other parties.
50. Section 106 of the Evidence Act would
apply to cases where the prosecution could be
said to have succeeded in proving facts from
which a reasonable inference can be drawn
regarding guilt of the accused.
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51. The presumption of fact is an inference as
to the existence of one fact from the existence
of some other facts, unless the truth of such
inference is disproved.
52. To explain what constitutes a prima facie
case to make Section 106 of the Evidence Act
applicable, we should refer to the decision of
this Court in State of W.B. v. Mir
Mohammad and ors. (2000) 8 SCC 382,
wherein this Court has observed in paras 36
and 37 respectively as under:
"36. In this context we may profitably
utilize the legal principle embodied in
Section 106 of the Evidence Act which
reads as follows: "When any fact is
especially within the knowledge of any
person, the burden of proving that fact is
upon him."
37. The section is not intended to relieve
the prosecution of its burden to prove the
guilt of the accused beyond reasonable
doubt. But the section would apply to
cases where the prosecution has
succeeded in proving facts from which a
reasonable inference can be drawn
regarding the existence of certain other
facts, unless the accused by virtue of his
special knowledge regarding such facts,
failed to offer any explanation which
might drive the court to draw a different
inference."
(Emphasis supplied)
53. We should also look into the decision of
this Court in the case of Ram Gulam
Chaudhary & Ors. v. State of Bihar, (2001)
8 SCC 311, wherein this Court made the
following observations in paragraph 24 as
under:
18. "24. Even otherwise, in our view, this is
a case where Section 106 of the Evidence Act
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would apply. Krishnanand Chaudhary was
brutally assaulted and then a chhura-blow
was given on the chest. Thus chhura-blow was
given after Bijoy Chaudhary had said "he is
still alive and should be killed". The appellants
then carried away the body. What happened
thereafter to Krishnanand Chaudhary is
especially within the knowledge of the
appellants. The appellants have given no
explanation as to what they did after they took
away the body. Krishnanand Chaudhary has
not been since seen alive. In the absence of an
explanation, and considering the fact that the
appellants were suspecting the boy to have
kidnapped and killed the child of the family of
the appellants, it was for the appellants to
have explained what they did with him after
they took him away. When the abductors
withheld that information from the court, there
is every justification for drawing the inference
that they had murdered the boy. Even though
Section 106 of the Evidence Act may not be
intended to relieve the prosecution of its
burden to prove the guilt of the accused
beyond reasonable doubt, but the section
would apply to cases like the present, where
the prosecution has succeeded in proving facts
from which a reasonable inference can be
drawn regarding death. The appellants by
virtue of their special knowledge must offer an
explanation which might lead the Court to
draw a different inference. We, therefore, see
no substance in this submission of Mr.
Mishra."
(Emphasis supplied)
54. Cases are frequently coming before the
courts where the husband, due to strained
marital relations and doubt as regards the
character, has gone to the extent of killing his
wife. These crimes are generally committed in
complete secrecy inside the house and it
becomes very difficult for the prosecution to
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lead evidence. No member of the family, like
in the case at hand, even if he is a witness of
the crime, would come forward to depose
against another family member.
55. If an offence takes place inside the four
walls of a house and in such circumstances
where the accused has all the opportunity to
plan and commit the offence at a time and in
the circumstances of his choice, it will be
extremely difficult for the prosecution to lead
direct evidence to establish the guilt of the
accused. It is to resolve such a situation that
Section 106 of the Evidence Act exists in the
statute book. In the case of Trimukh Maroti
Kirkan (supra), this Court observed that a
Judge does not preside over a criminal trial
merely to see that no innocent man is
punished. The Court proceeded to observe
that a Judge also presides to see that a guilty
man does not escape. Both are public duties.
The law does not enjoin a duty on the
prosecution to lead evidence of such
character, which is almost impossible to be
led, or at any rate, extremely difficult to be
led. The duty on the prosecution is to lead
such evidence, which it is capable of leading,
having regard to the facts and circumstances
of the case."
19. Reverting to the facts and circumstances of the case, it is quite
vivid that though the trial Court has held that the house in
question, where the incident was happened, the appellant and
the deceased-Prem Bai were living together, but, as per the
statement of Mansaro Bai (PW-1), mother of the deceased, it is
clear that marriage has not taken place between the appellant
and the deceased-Prem Bai and she used to live with the
appellant outside of marriage. As per the statement of Laltu
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Ram (PW-3), brother of the deceased-Prem Bai, who has only
stated that the appellant herein used to stay along with the
deceased as "Ghar Jawai", but, apart from that, what the
aforesaid witnesses have stated, Leela Bai (PW-4) has also
stated the same fact, but, no evidence has been brought on
record to show that on the date and time of commission of
offence, the appellant and the deceased were living together
and immediately thereafter, the deadbody was recovered and
that incriminating circumstances was put to the accused
under Section 313 of the Cr.P.C. and he has not explained in
his statement, as such, except, the death of the deceased-Prem
Bai is homicidal in nature, nothing has been brought on record
to invoke the provisions of Section 106 of the IEA as it was the
bounden duty of the prosecution to establish the guilt of the
appellant beyond reasonable doubt.
20. One of the other incriminating circumstances, which, the trial
Court has found proved that immediately after the incident for
six years, the appellant was absconding, which is relevant fact
under Section 8 of the IEA. However, Very recently, in the
matter of Subramanya v. State of Karnataka3, the Supreme
Court has clearly held that subsequent conduct of the accused
may be relevant fact under Section 8 of the IEA, but it cannot
2022 SCC OnLine SC 1400
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form basis for conviction that too for offence of murder and
observed in para 95 as under :-
"95.In the aforesaid context, we would like to
sound a note of caution. Although the conduct of
an accused may be a relevant fact under Section
8 of the Evidence Act, yet the same, by itself,
cannot be a ground to convict him or hold him
guilty and that too, for a serious offence like
murder. Like any other piece of evidence, the
conduct of an accused is also one of the
circumstances which the court may take into
consideration along with the other evidence on
record, direct or indirect. What we are trying to
convey is that the conduct of the accused alone,
though may be relevant under Section 8 of the
Evidence Act, cannot form the basis of
conviction."
21. Finally, in the light of the decisions of the Supreme Court in
the matters of Balvir Singh (supra) & Anees (supra) and the
contents of Section 106 of the IEA, the trial Court has wrongly
invoked Section 106 of the IEA to base the conviction of the
appellant and the relevant conduct under Section 8 of the IEA
that the appellant-accused is absconding for six years cannot
be made a sole basis for conviction of the appellant under
Section 302 of the IPC and the appellant is entitled for
acquittal giving him benefit of doubt.
22. Accordingly, the impugned judgment of conviction and order of
sentence dated 09.03.2018 passed by the learned Sessions
Judge, Uttar Bastar, Kanker, Chhattisgarh in Sessions Trial
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No.119/2015, convicting and sentencing the appellant for the
offence under Section 302 of the IPC, is hereby set
aside/quashed and the appellant is acquitted from the said
offence on the basis of principle of benefit of doubt. Appellant
is stated to be in jail since 15.07.2015, we direct that he be
released from the jail forthwith, if not required in any other
matter.
23. This criminal appeal is allowed.
24. Let a certified copy of this judgment along with the original
record be transmitted to the trial Court concerned and the
copy of this judgment be supplied to the concerned
Superintendent of Jail where he is lodged and suffering jail
sentence, forthwith for information and necessary action, if
any.
SD/- SD/-
(Sanjay K. Agrawal) (Sanjay Agrawal)
Judge Judge
Tumane
