Chattisgarh High Court
Karan Kosare vs State Of Chhattisgarh on 7 February, 2025
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.02.13
10:12:46 +0530
2025:CGHC:6994-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1461 of 2019
Karan Kosare S/o Late Shri Sukhchand Kosare Aged About 32
Years Occupation Labour R/o Ward No. - 02, Near Jaitkham,
Satnai Para, Police Station - Dhamadha, District - Durg
Chhattisgarh
... Appellant
versus
State Of Chhattisgarh Through The Station House Officer, Police
Station Dhamadha, Distt. - Janjgir - Champa Chhattisgarh
... Respondent
For Appellant : Mr. Rishi Rahul Soni, Advocate
For Respondent/State : Mr. Soumya Roy, Panel Lawyer
(Division Bench)
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment On Board
(07.02.2025)
Sanjay K. Agrawal, J.
1. This criminal appeal has been preferred under Section 374(2)
of Cr.P.C. calling in question the legality, validity and
correctness of the judgment of conviction and order of
sentence dated 06.08.2019, passed by learned 2nd
Additional Sessions Judge, Durg (C.G.) in Sessions Trial
No.58/2019, whereby the appellant herein has been
convicted for offence punishable under Section 302 of the
Indian Penal Code and sentenced to undergo Life
Imprisonment with fine of ₹1,000/- and in default of
payment of fine, to suffer one year additional rigorous
imprisonment.
2. The case of prosecution, in brief, is that on 04.01.2019 at
about 12:30 p.m., near Jaitkham, Satnami Para, Police
Station Dhamdha, District Durg, the appellant herein,
assaulted his wife Neha Kosare (now deceased) by hammer
and scissors, due to which she suffered grievous injuries
and died. The matter was reported to the Police, pursuant to
which, Merg Intimation was recorded vide Ex. P-1 and FIR
was registered vide Ex. P-22. Inquest was conducted vide
Ex. P-4 and dead body of deceased Neha Kosare was
subjected to post-mortem, which was conducted by Dr.
Dhanwantari Prasad Thakur (PW-9), who proved the post-
mortem report Ex. P-17, according to which, cause of death
was stated to be cardio-respiratory arrest due to
haemorrhagic & hypovolemic shock due to multiple injury
on head & face and death was homicidal in nature.
Pursuant to memorandum statement of appellant (Ex. P-
12), the weapon of offence i.e. hammer and scissors were
seized vide Ex. P-13, which were sent for chemical
examination to FSL along-with other seized articles and as
per FSL report Ex. P-30, blood was found on the hammer
but no blood was found on the scissors. After due
investigation, appellant was charge-sheeted for the aforesaid
offence before the jurisdictional criminal court, which was
ultimately committed to the Court of Sessions for hearing
and disposal in accordance with law.
3. During the course of trial, in order to bring home the offence,
prosecution examined as many as 10 witnesses and
exhibited 31 documents and the appellant-accused in
support of his defence has neither examined any witness
nor exhibited any document. The statement of appellant /
accused was recorded under Section 313 of the CrPC in
which he denied the circumstances appearing against him
in the evidence brought on record by the prosecution,
pleaded innocence and false implication.
4. The trial Court, after appreciation of oral and documentary
evidence on record, convicted and sentenced the appellant
herein as mentioned in the opening paragraph of this
judgment, against which the present appeal has been
preferred by the appellant questioning the legality, validity
and correctness of the impugned judgment.
5. Mr. Rishi Rahul Soni, learned counsel for appellant would
submit that merely on the basis of the statement of Sunil
Kumar Mahilange (PW-2), the appellant has been convicted
for offence under Section 302 of IPC whereas as per the
statement of Sunil Kumar Mahilange (PW-2) himself, the
appellant and the deceased were not living alone but his
aunt-in-law (बुआ सास) Smt. Ramkumari Kosare used to live
with the appellant and the deceased in the house in
question. Therefore, the trial Court is absolutely unjustified
in convicting the appellant for the said offence applying the
provisions of Section 106 of the Evidence Act. He submits
that as per FSL report (Ex. P-30), no human blood was
found on the weapon of offence i.e. hammer, therefore, the
seizure of hammer from the possession of appellant is of no
useful to the prosecution. As such, the prosecution has
failed to establish the case beyond reasonable doubt and
the appellant is entitled for acquittal on the basis of the
principles of benefit of doubt.
6. Mr. Soumya Roy, learned State counsel, would support the
impugned judgment and submit that the prosecution has
been able to bring home the offence beyond reasonable
doubt and the trial Court has rightly convicted the appellant
for offence under Section 302 of I.P.C. As such, the appeal
deserves to be dismissed.
7. We have heard learned counsel for the parties, considered
their rival submissions made herein-above and gone
through the records with utmost circumspection.
8. The case of prosecution is not based on direct evidence. It is
based on circumstantial evidence. The five golden principles
which constitute the Panchsheel of the proof of a case based
on circumstantial evidence have been laid down by their
Lordships of the Supreme Court in the matter of Sharad
Birdhichand Sarda v. State of Maharashtra 1 which must
be fulfilled for convicting an accused on the basis of
circumstantial evidence. The relevant paragraph 153 of the
said judgment reads as under: -
"153. A close analysis of this decision would show
that the following conditions must be fulfilled
before a case against an accused can be said to
be fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established.
It may be noted here that this Court indicated
that the circumstances concerned 'must or
should' and not 'may be' established. There is not
only a grammatical but a legal distinction
between 'may be proved' and "must be or should
1 (1984) 4 SCC 116
be proved" as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra 2 where
the following observations were made:
Certainly, it is a primary principle that the
accused must be and not merely may be
guilty before a court can convict and the
mental distance between 'may be' and 'must
be' is long and divides vague conjectures from
sure conclusions.
(2) the facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a
conclusive nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show that
in all human probability the act must have
been done by the accused."
9. Now, we consider the circumstances recorded by the trial
Court in the light of the principles of law laid down by the
Hon'ble Supreme Court in the case of Sharad Birdhichand
Sarda (supra).
10. The first and foremost circumstance for consideration is as
to whether the death of deceased Neha Kosare was
homicidal in nature?
11. Learned trial Court has recorded an affirmative finding in
this regard relying upon the postmortem report Ex. P-17
2 (1973) 2 SCC 793
proved by Dr. Dhanwantari Prasad Thakur (PW-9),
according to which, cause of death was stated to be cardio-
respiratory arrest due to haemorrhagic & hypovolemic shock
due to multiple injury on head & face and death was
homicidal in nature, which is a 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.
12. The conviction of appellant is based primarily on the
application of Section 106 of the Indian Evidence Act and
the statement of witness Sunil Kumar Mahilange (PW-2).
13. Now, the question for consideration is as to whether Section
106 of the Indian Evidence Act 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 this regard, the Supreme Court in the matter of Nagendra
Sah v. State of Bihar3, in paragraphs - 19, 22 & 23 has
held as under:
"19. In this case, as mentioned above, neither
the prosecution witnesses have deposed to that
effect nor any other material has been placed on
record to show that the relationship between the
appellant and the deceased was strained in any
manner. Moreover, the appellant was not the
only person residing in the house where the
incident took place and it is brought on record
that the parents of the appellant were also
present on the date of the incident in the house.
The fact that other members of the family of the
appellant were present shows that there could be
another hypothesis which cannot be altogether
excluded. Therefore, it can be said that the facts
established do not rule out the existence of any
other hypothesis. The facts established cannot be
said to be consistent only with one hypothesis of
the guilt of the appellant.
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.
3 (2021) 10 SCC 725
17. A careful perusal of the aforesaid judgment of the Hon'ble
Supreme Court would show that section 106 of the Evidence
Act would not be applicable where apart from the accused,
other persons were residing in the house where incident
took place. As in the case of Nagendra Sah (supra), apart
from the appellant, his parents were also present in the
house on the date and time of incident, their Lordships held
that other members of the family of the appellant were
present, would show that there could be another hypothesis
which cannot be altogether excluded.
18. Reverting to the facts of the present case, in light of the
aforesaid principles of law laid down by their Lordships of
the Supreme Court, it is quite vivid that the trial Court has
relied upon the statement of Sunil Kumar Mahilange (PW-2)
for convicting the appellant for offence under Section 302 of
IPC. But, Sunil Kumar Mahilange (PW-2) has clearly stated
in para-1 of his court statement that he was residing in the
house of his father-in-law Ramkumar Satnami (PW-1). In
the adjacent house, his aunt-in-law (बुआ सास) Ramkumari
Kosari used to live with appellant Karan Kosare and
deceased Neha Kosare. Though Ramkumari Kosari has been
cited as prosecution witness but she has not been examined
for the reason best known to the prosecution.
19. Sunil Kumar Mahilange (PW-2) has further stated that the
courtyards of his father-in-law and aunt-in-law are adjacent
to each other. There is a small wall in between from where
one can see the other's courtyard. He has stated that on the
date of offence, when he went to the courtyard to wash his
hands before having food, he saw the appellant washing his
hands near the septic tank and at that time, his hands were
stained with blood. When he asked the appellant as to how
his hands got stained with blood, he did not say anything.
Except this, nothing has been brought on record to
establish that the appellant and the deceased were in the
house in question, before or immediately after the date and
time of offence, Admittedly, the house of appellant and the
house where Sunil Kumar Mahilange (PW-2) was staying,
are different. Furthermore, Ramkumari Kosare who used to
live along with the appellant and the deceased ought to have
been examined by the prosecution to demonstrate the fact
that on the date and time of offence, the appellant and the
deceased were all alone in the house. From the statement of
Sunil Kumar Mahilange (PW-2), it is established that on the
date and time of incident, Ramkumari was present in the
house in question. Hence, in view of the principle of law laid
down by the Hon'ble Supreme Court in the case of
Nagendra Sah (supra), the provisions of Section 106 of the
Evidence Act would not be applicable in the facts of the
present case.
20. The next incriminating circumstance which has been found
to be proved by the trial Court is that pursuant to the
memorandum statement of the appellant, the weapon of
offence i.e. hammer was seized vide Ex. P-13, on which, as
per FSL report Ex. P-30, blood was found. However, in the
FSL report (Ex. P-30), no human blood was found on the
hammer and the blood group has also not been ascertained.
Though, on the weapon of offence blood was found but it
could not be established that the weapon of offence was
used by the appellant in commission of the offence.
Therefore, in view of the decision of the Hon'ble Supreme
Court in the case of Mustkeen alias Sirajudeen Vs. State
of Rajasthan4 recovery is of no use. Prosecution has failed
4 (2011) 11 SCC 724
to establish its use in commission of offence. Thus, merely
on the ground that the death was homicidal in nature, the
appellant cannot be convicted for the offence under Section
302 of IPC.
21. In view of the aforesaid discussion, we find that as per the
principle of 'Panchsheel' laid down by the Honorable
Supreme Court in the case of Sharad Birhichand Sarda
(Supra), the chain of circumstances are not so complete in
which the appellant can be held guilty for the offence.
Consequently, we are unable to uphold the conviction of the
appellant for the aforesaid offence and he is entitled for
acquittal on the basis of the principle of the benefit of doubt.
22. Accordingly, the impugned judgment dated 06.08.2019
passed by the Trial Court convicting and sentencing the
appellant for offence under Section 302 of IPC is hereby set
aside/quashed on the basis of benefit of doubt and the
appellant is acquitted from the said offence. The appellant
is reported to be in jail. He be released from jail forthwith, if
his detention is not required in connection with any other
offence.
23. This criminal appeal, accordingly, stands allowed.
24. Let a certified copy of this judgment along with the original
record be transmitted forthwith to the concerned trial Court
for necessary information & action, if any. A copy of the
judgment may also be sent to the concerned Jail
Superintendent wherein the appellant is suffering the jail
sentence. Sd/- Sd/-
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)
Khatai Judge Judge
