Allowed

Chetan Verma And Anr. v. State Of Chhattisgarh

Chhattisgarh HC23 Jun 2023CRA/1259/2014

Case brief

AI extract

What is this about?

In this criminal appeal under Section 374 Cr.P.C., the High Court acquitted two appellants convicted under Section 302 IPC for burning the deceased. The Court held that the prosecution failed to prove the death was homicidal and that Section 106 of the Evidence Act could not be invoked as the chain of circumstances was incomplete.

What did the court decide?

Impugned judgment set aside; appellants acquitted under Section 302 IPC and set at liberty.

Chetan Verma And Anr. Vs State Of… — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1259 of 2014

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1. Chetan Verma, S/o. Krishna Kumar Verma, Aged About 28 Years, R/o. Village Rengakathera, Out Post Jalbandha, Police Station Khairagarh, Distt. Rajnandgaon, Civil & Revenue Distt. Rajnandgaon, Chhattisgarh

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2. Krishna Kumar, S/o. Late Chatru Ram Verma, Aged About 50 Years, R/o. Village Rengakathera, Out Post Jalbandha, Police Station Khairagarh, Distt. Rajnandgaon, Civil & Revenue Distt. Rajnandgaon, Chhattisgarh

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---Appellants

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Versus

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State Of Chhattisgarh, Through the District Magistrate, Rajnandgaon, District Rajnandgaon, Chhattisgarh.

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---Respondent

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For Appellants :- Mr. Manoj Kumar Sinha, Advocate For State/Respondent :- Mr. Amrito Das, Addl. A.G.

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Arvind Singh Chandel

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Judgment On Board (23.06.2023)

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Sanjay K. Agrawal, J.

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1. This criminal appeal preferred by the appellants under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 28.11.2014, passed by the learned Additional Sessions Judge, Khairagarh, District Rajnandgaon in Sessions Trial No.08/2013, by which the two appellants Chetan Verma and

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Krishna Kumar herein have been convicted for the offence under Section 302 read with Section 34 of Indian Penal Code and sentenced to imprisonment for life and further sentenced to fine of Rs.1000/-, in default of payment of fine amount, additional rigorous imprisonment for 1 month.

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2. Case of the prosecution, in brief, is that the two appellants herein and one Sukma Bai, who was acquitted therein, were charged for treating the deceased Sevti Bai, wife of the appellant No.1, with cruelty for demand of dowry by which she suffered unnatural death and accordingly they were charged for offence under Section 304-B read with Section 34 of I.P.C. and under Section 3, 4 of the Dowry Prohibition Act and in alternative they were also charge-sheeted for the offence under Section 302 read with Section 34 of I.P.C. alleging that the two appellants and one acquitted co-accused poured kerosene oil on the body of deceased and set her ablaze, thereby they committed the offences. Further case of the prosecution is that marriage of the deceased Veena @ Sevti was solemnized in April, 2010 with Chetan Verma, appellant No.1 and they have blessed with one daughter, aged about 1 ½ years and the deceased was pregnant at the time of her death on 12.04.2013. It is further case of the prosecution that on the said date, the deceased was died unnatural death within 7 years of marriage, which was informed by the deceased father Gopi Chand Verma (PW-1) to Out post - Jalbandha, Police Station Khairagarh and thereafter, merg was registered and inquest was conducted and it was found that the two appellants and one acquitted co-

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accused used to torture the deceased for demand of dowry of Rs.2,00,000/-. The dead body was sent for post-mortem, which was conducted by Dr. M.N.Mandavi (PW-3), who proved the post-mortem report Ex.P-10, according to which, cause of death was stated to be shock due to 98% burn injury. After due investigation, appellants herein were charge-sheeted for the aforesaid offence under Section 302 read with Section 34 of I.P.C. before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated.

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3. In order to bring home the offence, prosecution examined as many as 13 witnesses and exhibited 18 documents and the appellants-accused in support of their defence have not examined any witness, but have exhibited the document Ex.D-1, which is a statement of Neera Bai recorded under Section 161 of Cr.P.C.

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4. The learned trial Court, after appreciation of oral and documentary evidence on record, acquitted the co-accused Sukma Bai from all the offences and the two appellants herein have been acquitted for offence under Section 304-B read with Section 34 of I.P.C. and also acquitted under Section 3, 4 of the Dowry Prohibition Act, but they are convicted for the offence under Section 302 read with Section 34 of I.P.C. and sentenced to life imprisonment and fine of Rs.1000/-, against which the present appeal has been preferred.

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5. Mr. Manoj Kumar Sinha, learned counsel for the appellants would submit that there is no direct evidence against the appellant No.1 and only on the basis, wife of the appellant No.1 was found dead by burn injuries in the house, the presumption of guilt has been drawn in absence of any clinching evidence on record. On behalf of appellant No.2, learned counsel would submit that the appellant No.2 is innocent and has been falsely implicated in this case. There is no direct evidence against the appellant No.2 regarding his participation in commission of offence, regarding demand of dowry or regarding committing murder of the deceased. Some of the witnesses have though made general allegations against the appellant No.2 that he was also a participant in demand of dowry which is not enough to substantiate the crime of murder. Therefore, the appeal of the appellants herein deserves to be allowed.

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6. Mr. Amrito Das, learned State counsel, would support the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt and learned trial Court has rightly convicted the appellants herein for offence punishable under Section 302 read with Section 34 of I.P.C. He submits that map panchnama (Ex.P-3) prepared by Tahsildar (PW-13) proves that dead body was found in an open place without any cover in the house and a matchbox and jerrycane of kerosene oil was also found near the same place. This evidence has remained un-controverted. He further submits that medical evidence shows that there were contusions and other injuries in the body and tongue was protruded. The

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husband of the deceased/ appellant No.1 failed to explain the facts, which were in his personal knowledge, as to how his wife died in this manner under suspicious circumstances. He further submits that there is evidence to show that wife was also harassed and tortured by the husband and on one occasion, the appellant No.1/husband threatened to kill his wife. Therefore, the appeal of the appellants herein is liable to be dismissed.

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7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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8. The first question for consideration is whether the death of deceased Sevti was homicidal in nature ?

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9. It is appropriate to notice here that the trial Court has acquitted one co-accused Sukma Bai for all the offences, however, acquitted the two appellants for offence under Section 304-B read with Section 34 of I.P.C. and under Section 3, 4 of the Dowry Prohibition Act and it is further held that death of deceased Sevti was not accidental or suicidal, but it was homicidal. However, a careful perusal of the statement of Dr. M.N.Mandavi (PW-3), who conducted the post-mortem, would show that he has not clearly opined as to whether the death of the deceased was homicidal. He stated that death of the deceased could be accidental also on account of burn injury, as such, death of the deceased to be homicidal in nature has not been clearly established beyond reasonable doubt by the prosecution, which is sine qua non for convicting the

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appellants/ accused for the offence under Section 302 read with Section 34 of I.P.C.

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10. Now, the next question for consideration is whether the appellants are the author of the crime ?

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11. As noticed herein above, the trial Court clearly held that the appellants are entitled for clean acquittal for the offences under Section 304-B read with Section 34 of I.P.C. and under Section 3, 4 of the Dowry Prohibition Act and further acquitted one coaccused Sukma Bai on the ground that she is residing separately with her elder son, away from the house in question where the death of the deceased Sevti took place. It further held that the appellant No.2 namely Krishna Kumar could not prove that he is not residing with his son appellant No.1 or he was not present on the spot. It was further held the two appellants have also not proved that they were not in the house on the date of offence and the deceased was found 98% burn and their conduct is unnatural and thereby applying Section 106 of the Evidence Act, the two appellants have been convicted for the offence under Section 302 read with Section 34 of I.P.C.

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12. Now, the question would be, whether Section 106 of the Evidence Act would be applicable or not?

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13. Section 106 of the Indian Evidence Act, 1872, states as under: -

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“ 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.”

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14. This provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon

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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.

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15. 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: -

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“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

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1AIR 1956 SC 404

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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).”

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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.

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16. 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: -

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“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.

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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.”

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17. Similarly, the Supreme Court in the matter of Gurcharan Singh v.

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State of Punjab 3, while considering the provisions contained in

2(2021) 10 SCC 725

3AIR 1956 SC 460

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.

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18. 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 Bihar 4 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.

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19. 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?

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20. The Supreme Court in Sawal Das (supra) has clearly held that Section 106 of the Evidence Act can be applied only when the prosecution has led evidence which if believed will sustain conviction, or makes out a prima facie case, that the question

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4AIR 1974 SC 778

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arises of considering facts of which the burden of proof may lie upon the accused.

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21. Turning to the facts of the 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 after holding the death of the deceased to be homicidal in nature in para 38 clearly recorded a finding that the two appellants could not prove that they were not present in the house on the date of offence. However, the appellant No.1 answered to question No.65 put to him under Section 313 of Cr.P.C. clearly stating that he was not in the house on the date of offence and when he reached to home, he came to know that his wife has suffered burn injuries; whereas appellant No.2 has answered question No.65 put to him under Section 313 of Cr.P.C. and has stated that he has gone to the field along with the appellant No.1 and then came to know about the incident after he reached to home. As such, the prosecution has failed to establish that appellants were present in the house in question on the date and time of offence and trial Court has wrongly placed the burden on the appellants.

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22. As such, 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, Section 106 of the Evidence Act cannot be invoked and the appellants cannot be held guilty of the offence under Section 302 read with Section 34 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

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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.

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23. In view of the aforesaid analysis, we are unable to sustain conviction and sentences imposed upon the appellants under Sections 302 read with Section 34 of the I.P.C. Accordingly, the impugned judgment dated 28.11.2014 is hereby set aside. The appellants stand acquitted from the charges framed against them for the offence punishable under Section 302 read with Section 34 of the I.P.C. and they shall be forthwith set at liberty, unless they are required in connection with any other case.

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

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Sd/Sd/- (Sanjay K. Agrawal) (Arvind Singh Chandel) Judge Judge

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Ashok

Chetan Verma And Anr. v. State Of Chhattisgarh

Case brief

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Chetan Verma And Anr. v. State Of Chhattisgarh

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