Uppeal against conviction for murder under Section 302 IPC dismissed. Court held death was homicidal. Relied on Section 106 Evidence Act finding appellant alone present with deceased at time of death and failed to explain injuries, thus completing chain of circumstances.
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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 CasteBargah, 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
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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
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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
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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 3rd , 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.
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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.
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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
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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.
16. Similarly, the Supreme Court in the matter of Gurcharan Singh
2 (2021) 10 SCC 725
3 AIR 1956 SC 460
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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 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.
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
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“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 Maharashtra 6, 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
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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
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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
3 issues framed by the court
Whether the death of the deceased was homicidal in nature?
Whether the appellant is the author of the crime based on circumstantial evidence and Section 106 of the Evidence Act?
Whether the appellant failed to offer a reasonable explanation for the death of his wife in the circumstances of the case?
Colour shows how this judgement treated each authority
Attygalle v. The KingReferred¶37
AIR V 23 (A)
Seneviratne v. R.Referred¶37
3 ER 36 AT P. 49 (B)
Shambhu Nath Mehra v. The State of AjmerFollowed¶36
1 AIR 1956 SC 404 · Who else cites this
Nagendra Sah v. State of BiharFollowed¶43
(2021) 10 SCC 725 · Who else cites this
Gurcharan Singh v. State of PunjabFollowed¶46
AIR 1956 SC 460 · Who else cites this
Sawal Das v. State of BiharFollowed¶52
AIR 1974 SC 778 · Who else cites this
Harijan Bhala Teja v. State of GujaratFollowed¶53
AIR 2016 SC 2065 · Who else cites this
Gajanan Dashrath Kharate v. State of MaharashtraFollowed¶58
6 AIR 2016 SC 1255 · Who else cites this
3 provisions across 3 enactments
Ramnarayan
State Of Chhattisgarh
Sanjay K. Agrawal
Rakesh Mohan Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
