Madhya Pradesh High Court
Kailash Chamar vs The State Of Madhya Pradesh on 29 March, 2022
Author: Vivek Rusia
-1- CRA NO.5024/2021
IN THE HIGH COURT OF MADHYA PRADESH AT
INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 29th of March, 2022
CRA No.5024/2021
(KAILASH CHAMAR & 2 others VS. STATE OF MADHYA
PRADESH)
ORDER
Shri Avinash Sirpurkar, learned senior counsel along with
Shri Bablu Patel, learned counsel for the appellant
Shri Aditya Garg, learned counsel for the respondent State.
******
Heard on I.A. No.4022/2022, which is first application
under Section 389(1) of Cr.P.C. for suspension of remaining jail
sentence on behalf of appellant no.2 Moti @ Motilal.
The appellant has been convicted and sentenced as under:-
Conviction Sentence
Section Act Imprisonment Fine Imprisonment
in lieu of Fine
148 IPC 1 year R.I Rs.1,00 01months S.I
0/-
302 r/w 149 IPC Life Rs.10,0 6 Months S.I
-2- CRA NO.5024/2021
Imprisonment2 00/-
201 IPC 2 years R.I Rs.1,00 01 Months S.I
0/-
As per prosecution story, all the five accused persons were
last seen with the deceased Surajmal on 11.6.2005. Thereafter his
dead body was found. The information received by the police is
Ex D-1. The police reached the spot and recovered the dead body
and sent the same for postmortem. As many as 17 stab injuries
were found on the dead body. The police found two mobile phones
from the pocket of the deceased. After unlocking the mobile
phones, the photo of Raja @ Suresh was found. Both the sims
were recovered and on search, it was found that the sims were in
the name of Raja @ Suresh and his mother Sampat Bai. The police
conducted further investigation and recorded the statements under
Section 161 of Cr.P.C of the son and father of the deceased namely
Rohit and Moolchand, who have stated that they saw the deceased
along with four other co-accused persons. Accordingly, the police
arrested all of them except Raju @ Sandeep Balai. A knife was
recovered from the possession of Raja @ Suresh. On their
memorandum statement recorded under section 27 of the Evidence
Act Raju @ Sandeep has been implicated alleging that he had
dropped Raja @ Suresh after committing the incident.
-3- CRA NO.5024/2021
After evaluating the evidence vide judgment dated
06.08.2021, the learned Sessions Court has acquitted the
appellants under Section 120 (B) (1) of IPC but convicted them
under Sections 148,302,201 and 212 of IPC.
Learned counsel for the appellant has referred to para 52 of
the judgment according to which burden of proof has been shifted
on the accused persons under section 106 of the Evidence Act to
explain as to what had happened when they were last seen together
with the deceased.
Learned counsel for the appellant has further referred to the
statement of Moolchand (PW-1) and Rohit (PW-2), who have
categorically stated that they saw Surajmal (deceased) with Raja
@ Suresh and Nagesh and specifically denied the presence of
Kailash Chamar and Motilal. They were also confronted under
section 161 and in their statement also, they denied that they never
disclosed the name of Kailash Chamar and Motilal. Therefore, in
view of the above, the presence of Kailash Chamar and Motilal
has not been established with the theory of last seen together.
Therefore, the burden under Section 106 of the Evidence Act has
wrongly been shifted.
In such circumstances, learned counsel for the appellant
submits that the appellant has wrongly been convicted under
Section 302 IPC with the aid of Section 149 of IPC specially when
conspiracy has not been established.
-4- CRA NO.5024/2021
Learned counsel for the respondent State opposes the
prayer.
Most recently the Supreme Court of India in the case of
Satye Singh v/s State of Uttrakhand reported in 2022 Live Law
(Supreme Court) 169 has held that Section 106 of the Evidence
Act is not intending to relieve the prosecution
from discharging its duty to prove the guilt of the accused. Para 15
and 16 are reproduced below: -
"15.Applying the said principles to the facts of the
present case, the Court is of the opinion that the
prosecution had miserably failed to prove the entire
chain of circumstances which would unerringly
conclude that alleged act was committed by the
accused only and none else. Reliance placed by
learned advocate Mr. Mishra for the State on Section
106 of the Evidence Act is also misplaced, inasmuch
as Section 106 is not intended to relieve the
prosecution from discharging its duty to prove the
guilt of the accused. In Shambu Nath Mehra vs. State
of Ajmer , AIR (1956) SC 404, this court had aptly
explained the scope of Section 106 of the Evidence
Act in criminal trial. It was held in para 9:
9.. This lays down the general rule that in a criminal
case the burden of proof is on the prosecution and
Section 106 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 word "especially" stresses that. It
means facts that are preeminently or exceptionally
within his knowledge. If the section were to be
-5- CRA NO.5024/2021
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. Emperor [AIR 1936 PC 169]
and Seneviratne v. R. [(1936) 3 All ER 36, 49]"
16. In the case on hand, the prosecution having failed
to prove the basic facts as alleged against the accused,
the burden could not be shifted on the accused by
pressing into service the provisions contained in
section 106 of the Evidence Act. There being no
cogent evidence adduced by the 11 prosecution to
prove the entire chain of circumstances which may
compel the court to arrive at the conclusion that the
accused only had committed the alleged crime, the
court has no hesitation in holding that the Trial Court
and the High Court had committed gross error of law
in convicting the accused for the alleged crime,
merely on the basis of the suspicion, conjectures and
surmises."
We have heard learned counsel for the parties, perused the
record.
The Apex Court in the case of Satye Singh (supra) has held
that Section 106 of the Evidence Act cannot be used to implicate
the accused persons unless all the circumstances has been
established by the prosecution. Conviction solely based under
Section 106 has been set aside by the Apex Court.
-6- CRA NO.5024/2021
In view of the above and also considering the facts and
circumstances of the case as well as the arguments advanced by
learned counsel for the parties, we are of the considered opinion
that the application for suspension of custodial sentence moved on
behalf of the appellant No.2 Motilal deserves to be allowed.
Accordingly, I.A. No. 4022/2022 is allowed and it is
directed that subject to depositing fine amount and on furnishing
personal bond by the appellant no.2 Motilal in the sum of
Rs.50,000/- (Rupees Fifty thousand only) each with one solvent
surety each in the like amount to the satisfaction of the learned
trial Court for his appearance before the Court, the execution of
custodial part of the sentence shall remain suspended, till the final
disposal of this appeal.
The appellant after being enlarged on bail shall mark his
presence before concerned trial court on 26/09/2022 and on all
such subsequent dates, which are fixed in this regard by Trial
Court concerned.
Certified copy, as per rules.
( VIVEK RUSIA ) (AMARNATH (KESHARWANI))
JUDGE JUDGE
Digitally signed by HARI
hk/ KUMAR C G NAIR
Date: 2022.03.31 11:38:12
+05'30'
