Dismissed

Roshan Uraon v. State of Chhattisgarh

Chhattisgarh HC19 Sept 2023CRA/349/2022

Case brief

AI extract

What is this about?

High Court dismissed the criminal appeal and affirmed the conviction of the appellant for murder under IPC 302. The court rejected the argument that Section 106 of the Evidence Act shifted the burden of proof to the accused, holding that the prosecution proved its case beyond reasonable doubt through eye-witness testimony and dying declaration.

What did the court decide?

Criminal appeal dismissed; appellant to serve the sentence of life imprisonment as ordered by the trial court.

Roshan Uraon Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 349 of 2022

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Roshan Uraon S/o Puniram Uraon Aged About 26 Years R/o Village Devari, Police Station Bhupdevpur, District Raigarh, Chhattisgarh

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---- Appellant

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Versus

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State of Chhattisgarh Through The Station House Officer Police Station Bhupdevpur, District Raigarh, Chhattisgarh

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---- Respondent

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(Cause title taken from Case Information System)

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For Appellant : Mr. A.N. Pandey, Advocate For Respondent/State : Mr. Pawan Kesharwani, Panel Lawyer

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Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri N. K. Chandravanshi, Judge

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Judgment on Board

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Per Ramesh Sinha, C.J.

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19.09.2023

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This criminal appeal preferred under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 18.01.2022 passed by the Second Additional Sessions Judge, Raigarh, District – Raigarh (C.G.) in Sessions Trial No. 63/2019 by which the appellant has been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo life imprisonment and to pay a fine of Rs. 500/-, in default, to further undergo simple imprisonment for 2 months.

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Case of the prosecution, in brief, is that the applicant of the case, Sawan Uraon, who is resident of village Deori and student of Class

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11^th , lodged Dehati Nalsi (Ex.P-01) as Crime No. 0/2019 in Police Station, Bhupdevpur, stating that on the date of incident i.e. on 09.10.2019, at around 6.00 pm, he had gone out to his village for a walk in the neighborhood and his mother Sukanti, Sister Komal Oraon, elder brother Roshan Oraon and his middle brother Pramod Oraon were at home, at around 6.30 pm, hearing the noise in his house, he came to his house and saw that his middle bother Pramod Oraon was lying in a brunt state in the courtyard of the house and was screaming. His face, back, body and both hands were brunt. When asked, he told that his brother Roshan Oraon sprinkled kerosene kept in a jar on his body and brunt him with a matchstick. Two months before the incident, there was a dispute between Pramod and Roshan Oran regarding mobile, Roshan Oraon had broken Pramod’s mobile. There was no communication between the two regarding the same issue. Due to mobile dispute, Roshan Oraon, with the intention of killing his brother Pramod Oraon, sprinkled kerosene on his body, struck a matchstick and brunt him. At the time of the incident, when his sister Kumari Komal tried to intervene, her hand also got burnt. His mother Sukanti Oraon, Komal Oraon and people of the locality saw the incident happening and after informing vehicle 112, the vehicle staff came and admitted Pramod Oraon to KGH Hospital, Raigarh for treatment.

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On the basis of the Dehati Nalsi (Ex.P-1) , First Information Report (Ex.P-26) was registered under Section 307 IPC against the accused in Police Station, Bhupdevpur. Investigation Officer left for

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scene of occurrence and Crime Details and spot map were prepared vide Ex.P-7. The accused/appellant was arrested vide Ex.P-12 and memorandum statement of the accused/ appellant was recorded vide Ex.P-10 and on the basis of memorandum statement of appellant, one jerkin of 5 liters containing some kerosene was seized vide Ex.P-11. Clothes of the appellant were seized vide Ex.P-8 and brunt black colour cloth from which smell of kerosene was coming, soil containing kerosene, plain soil and one matchbox containing 6 matchsticks were also seized from the spot vide Ex.P-9. Dying declaration of the deceased was recorded by Naib Tehsildar, Vikrant Singh Rathore (PW-12) vide Ex.P-22.

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During the course of treatment on 14.10.2019, the injured Pramod Uraon died, thereafter merg intimation was prepared vide Ex.P-21 and offence under Section 302 of the IPC was added in the FIR against the accused/appellant. Dead body of the deceased was sent for postmortem to District Hospital, Raigarh vide Ex.P-23, where Dr. S. Lakra (PW-9) has conducted postmortem vide Ex.P20 and found following injuries :

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About 56-66 percent of the body was burnt on the upper and lower sides. The hair on the head was partially scorched and partially burnt, the face was badly burnt, the neck, chest, both arms were burnt in the front and back, the thighs of both the legs were burnt from front to back, the upper one of the thigh was burnt. Third part was completely burnt, left part of scrotum was swollen, penis was burnt, back part of

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left testicle was burnt till behind the knee, back part was burnt from neck to waist, reproductive organs were burnt in former form. There was no injury of any kind on the skull, eyes and mouth were open.

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After having careful postmortem examination, the doctor came to the conclusion that the cause of death was septicemia with burn injury shock with mvas failure followed by 56% to 66% superficial to deep burn. Nature/mode of death through the base of signs and symptoms only it is difficult to spell its nature. So the circumstantial evidences must be considered to rule out.

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Statements of the witnesses were recorded under Section 161 of the Cr.P.C. After usual investigation, the accused / appellant was charge-sheeted for offence under Section 302 of the IPC and charge-sheet was filed before the jurisdictional Criminal Court and the case was committed to the Court of Sessions from where the Second Additional Sessions Judge, Raigarh, received the case on transfer for hearing and disposal in accordance with law.

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Statement of the accused/appellant was recorded under Section 313 of the Cr.P.C., wherein he abjured the guilt and entered into witness that he has not committed any offence and he has been falsely implicated in the present case.

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In order to bring home the offence, the prosecution examined as many as 15 witnesses and exhibited 33 documents. The defence has examined none in its behalf and no document has been exhibited.

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The trial Court upon appreciation of oral and documentary evidence on record and considering that it is the appellant who has caused the murder of his brother, proceeded to convict and sentence him under Section 302 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred.

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Mr. A. N. Pandey, learned counsel for the appellant submitted that the learned trial Court has not property considered the evidence of PW-1 Sawan Uraon in which there are material omissions and contradictions in his court statement and police statement, therefore, the version of this witness is not reliable. He further submitted that the learned trial Court has not properly considered the evidence of PW-2 Komal Uraon, PW-3 Rathuram and PW-4 Sukanti Uraon, who are relative witnesses and there are material omissions and contradictions in the police statement and court statement. The seizure and memorandum witnesses, namely, Mohan Das Mahant (PW-5) and Rajkumar Sahu (PW-7), have turned hostile and not supported the case of prosecution. There is no motive and intention to commit murder of the deceased by the appellant. He further submitted that though the conviction is based on circumstantial evidence, but the chain of circumstantial evidence was not properly connected to the other evidence about the involvement of the appellant in this case, therefore, the appellant is liable to be acquitted from the aforesaid charges.

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On the other hand, Mr. Pawan Kesharwani, learned Panel Lawyer, appearing for the respondent/State, supports the impugned

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judgment and submits that the conviction is substantially based on circumstantial evidence and eye-witness. The presence of Komal Uraon (PW-2), sister of the deceased as well as accused appellant, who is the eye-witness of the incident, cannot be doubted and she is a natural witness to the incident. It is argued that though she is a related witness but same would not, in any manner, go to show that she is not a credible witness. Her testimony is of the nature of true and a truthful witness. He contended 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 the IPC and therefore, the appeal deserves to be dismissed.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the trial Court with utmost circumspection and carefully as well.

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In the instant case, the incident happened in the house of the accused/appellant and at the time of incident the appellant was present in the house, thus the question would be, whether Section 106 of the Evidence Act would be applicable or not?

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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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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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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

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1 AIR 1956 SC 404

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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).”

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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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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

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2 (2021) 10 SCC 725

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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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Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab 3, while considering the provisions contained in 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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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

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3 AIR 1956 SC 460

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4 AIR 1974 SC 778

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whether or not the accused has made out a specific defence.

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The complainant Sawan Uraon (PW-1) has stated that the accused was his real brother, the incident took place at the time of Durga Visarjan in the year 2019. At the time of incident, he was out of the house. Hearing the noise, he came to his house and saw that his brother Pramod Uraon was burning, when he asked the accused, the accused did not tell anything and at the time of incident, his sister was in the house. When he asked her sister, she told that accused Roshan had burnt Pramod Uraon. After the said incident, he went to Sarpanch of his village and called the police by calling 112 and took his brother Pramod Uraon to the hospital. Witness Sawan Uraon is the real brother of accused Roshan Uraon and deceased Pramod Uraon due to which the said witness is a witness interested to the accused and the deceased. It is self-evident from the evidence of this witness that he did not direct see the incident taking place, but he reached the spot immediately after the incident and on inquiring, he came to know from his sister that the accused had killed the deceased by pouring kerosene on him and lit a matchstick and set him on fire. This witness has admitted in paragraph 7 of his cross-examination that at the time when deceased Pramod Uraon was burning, when this witness asked the deceased about the incident, he did not tell anything. The witness himself says that he was told in the hospital. Due to which the evidence of the witness is confirming only the statement of the prosecution that

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after being told about the incident by his sister, the said witness came to know that the accused had poured kerosene on him and killed his brother Pramod Uraon with a matchbox by setting fire.

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Eyewitness of the case, Komal Uraon (PW-2) testifies that accused Roshan and deceased Pramod Uraon are her bothers. The incident took place at around 6.00 pm during Navakhai festival. At the time of the incident, she was washing utensils in her house when the accused had poured kerosene oil on her brother Pramod Uraon and burnt him. Hearing the noise, she came and extinguished the fire by pouring water on her brother Pramod Uraon, but the fire was not extinguished. Then his brother Pramod came out of the house and was trying to extinguish the fire by running here and there in the field. After that she herself went to the field and extinguished and while extinguishing, her hand was also slightly burnt. In the leading question asked by the prosecution to the said witness, she has stated that she was not aware of the suggestion of the prosecution that there was dispute between the deceased and the accused on the issue of breaking the mobile phone, but the witness herself has stated that earlier there was a dispute regarding the breaking of the mobile phone in village Urdana and she has also admitted that regarding the same mobile dispute, the accused had poured kerosene on his brother Pramod Uraon and burnt him in the veranda of the house. The said witness is an eye-witness of the incident, who has directly seen the incident

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happening and the witness is the real sister of the deceased and the accused, due to which despite the said witness being interested, there is no sufficient reason to doubt the statement of this witness and hence the said witness has been crossexamined in detail by the defense side, but the statement of the witness could not be refuted materially and the witness herself in her cross-examination clarified her statement that while she was washing the utensils she saw that her brother accused Roshan brought kerosene from inside the house and poured it on her brother Pramod Uraon and burnt him with a matchstick. The irrefutable evidence of the witness is confirming the statement of the prosecution that on the date of the incident, the accused had poured kerosene on him and set him on fire with the intention of killing his brother Pramod Uraon.

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Rathuram (PW-3), an interested witness of the case, has stated that the accused Roshan and the deceased Pramod are his niece’s son, who is his grandson in relation and when he returned from work in the evening on the date of the incident, he was that Pramod Uraon was in a burnt state sitting near the door. Similarly, Sukanti (PW-4), who is the mother of the accused and the deceased, the said witness has also stated that she was at her parent’s home at the time of the incident and when she returned to her home after receiving information about the incident, she was informed that the accused Roshan poured kerosene on Pramod Uraon and burnt him.

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Munna Ram Uraon (PW-6), the other independent witness of the case, has stated in his evidence that he has no knowledge about the incident, similarly, the other interested witness of the case, Puniram Uraon (PW-15), who is the father of the deceased, in his evidence has stated that after getting information about the incident from the newspaper, he has seen his son deceased Pramod in a burnt state in the burn ward of the hospital. He has also stated that his son Pramod Uraon was talking to him that accused Roshan had burnt him.

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As per the evidence of witnesses of the seizure and memorandum of the case, Mohar Das Mahant (PW-5) and Rajkumar Sahu (PW-7) the police did not record any memorandum statement of the accused Roshan Uraon in front of them and did not seize anything from the possession of the accused on the basis of the memorandum statement of the accused. The above witnesses have admitted their signatures on the accused memorandum statement Ex.P-10 and seizure sheets Exs. P-8, 9 and 11 and view map Ex.P-7.

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Witness Naib Tehsildar Vikrant Singh Rathore (PW-12) has stated though the victim was in burnt condition but he was in a position to give statement at the time recording his statement, hence, dying declaration of the victim was recorded vide Ex.P.22 in KGH Hospital, Raigarh. The said witness has been crossexamined in detail by the defense side, but the statement of the witness could not be refuted materially. Although there are a

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small amount of contradictory statements in the crossexamination of the witness, but there is no such materiality in those statements which could be refuted on the basis of which it can be considered doubtful, due to which, from the unrebutted evidence of the said witness, it is proved that on 09.10.2019, in the dying declaration of Pramod it has been told that as the accused had broken his mobile due to which he was not talking to the accused for three months. Due to the same grudge, on the date of incident at 6.30 pm, the accused got angry and poured kerosene on him from a kerosene box and set him on fire with a matchstick. As the said statement was given by the deceased Pramod soon before his death, due to which there is no doubt on the above statement of the deceased.

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Dr. S. Lakra (PW-9), who has conducted postmortem of the deceased, has stated that on 14.10.2019, in the District Hospital, Raigarh, when the body was brought before him for examination, he examined the body internally and externally and gave the postmortem report vide Ex.P-20. Injuries and opinion given by the Doctor have already been reproduced hereinabove. The statements given by this witness and the postmortem report given by him were not refuted even after the cross-examination of the witness by the defense side, thus it is proved that the deceased died due to 56-66 percent burns and non-functioning of his internal organs.

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Considering the statements of the prosecution witnesses, the

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finding recorded by the trial Court, the fact that the appellant has not offered any explanation under Section 313 of the CrPC and considering the statement of Sawan Uraon (PW-1), complainant and also considering the statement of eye-witness, Komal Uraon (PW-2), who was present in the house at the time of incident and was washing utensils when the accused poured kerosene oil on her brother Pramod Uraon and burnt him and also considering the dying declaration (Ex.P-22) made before the Naib Tehsildar Vikrant Singh Rathore (PW-12), we are of the considered opinion that the prosecution has proved its case beyond reasonable doubt that it is the appellant who caused burn injuries to his deceased brother due to which he died and the trial Court has rightly convicted the appellant for offence under Section 302 of the IPC. Hence, we do not find any illegality or irregularity in the findings recorded by the trial Court.

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For the foregoing reasons, the criminal appeal being devoid of merit is liable to be and is hereby dismissed.

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It is stated at the Bar that the the appellant is in jail, he shall serve out the sentence as ordered by the learned trial Court.

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Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.

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Sd/- Sd/- (N.K. Chandravanshi) (Ramesh Sinha) Judge Chief Justice

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Chandra

Roshan Uraon v. State of Chhattisgarh

Case brief

What is this about?

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Roshan Uraon v. State of Chhattisgarh

Case brief

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