Dismissed

Shubharam v. State Of Chhattisgarh

Chhattisgarh HC4 Oct 2023CRA/48/2016

Case brief

AI extract

What is this about?

In a criminal appeal against a murder conviction, the High Court affirmed the trial court's finding that the theory of last seen together was established and upheld the conviction under Section 302 IPC by applying Section 106 of the Evidence Act as the accused failed to explain his wife's death.

What did the court decide?

The criminal appeal preferred under Section 374(2) of Cr.P.C. was dismissed upholding the conviction and sentence.

Shubharam Vs State Of Chhattisgarh — 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. 48 of 2016

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Shubharam, S/o. Shyam Singh, Aged About 45 Years, R/o. Village Suskam, P.S. Udaipur, District Surguja, Chhattisgarh.

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---Appellant

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Versus

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State Of Chhattisgarh, Through P.S. Udaipur, District Surguja, Chhattisgarh.

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	---Respondent
For Appellant	:- Mr. C.R.Sahu, Advocate
For State/Respondent	:- Mr. Ali Asgar, Dy. A.G.

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal

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Judgment On Board

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(04.10.2023)

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Sanjay K. Agrawal, J.

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1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 28.11.2015, passed by the learned Additional Sessions Judge, Surguja (Ambikapur), in Sessions Trial No.17/2015, by which, appellant herein has been convicted for the offences under Sections 302 & 325 of Indian Penal Code and sentenced as under with a direction to run both the sentences concurrently.

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CONVICTION	SENTENCE
U/s. 302 of I.P.C.	: Life imprisonment and fine of Rs. 100/-, in default of payment of fine, 6 months additional rigorous imprisonment.

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U/s. 325 of I.P.C.	: Rigorous	imprisonment for 2
	years and	fine of Rs. 500/-, in
	default of	payment of fine, 6
	months	additional rigorous
	imprisonme	nt.

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2. Case of the prosecution, in brief, is that, on 16.09.2014, at about 3:00 a.m., at village Suskam, Police Station Udaipur, District Surguja, the appellant herein assaulted his wife Muti Bai (now deceased) by axe and killed her and thereafter, he assaulted Mangal Say (PW-2) by axe, by which he also suffered grievous injuries; thereby, offences have been committed. Further case of the prosecution is that, on 16.09.2014, at 7:00 a.m., on finding the door of the appellant’s house closed, his brother Panchram (PW-1) called his sister-in-law and tried to wake up, then the appellant is said to have come out armed with axe and then Panchram (PW-1) fled away from the said premises and thereafter, the appellant assaulted Mangal Say (PW-2) near the house of Ratiram and absconded thereafter. Panchram (PW-1) went inside the house of the appellant and found his sister-inlaw seriously injured and already dead and her body was lying inside the house of appellant. Thereafter, Panchram (PW-1) reported the matter to the police and merg intimation was registered vide Ex.P-1, FIR was registered vide Ex.P-2, Nazarinaksha was prepared vide Ex.P-10, inquest was conducted vide Ex.P-4 and dead body of deceased Muti Bai was subjected to post-mortem, which was conducted by Dr. S.K.Tigga (PW-7), who proved the post-mortem report Ex.P-13, according to

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which, cause of death was shock due to injury to neck and death was homicidal in nature. The axe was seized from the possession of Panchram (PW-1) vide Ex.P-7, which was sent for examination to FSL and in the FSL report (Ex.P-18), blood was found on the seized axe. After due investigation, the appellant was charge-sheeted for the aforesaid offences to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

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3. In order to bring home the offence, prosecution examined as many as 16 witnesses and exhibited 25 documents and the appellant-accused in support of his defence has neither examined any witness nor has exhibited any document.

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4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the aforesaid offences and sentenced him as mentioned in the opening paragraph of the judgment against which the present appeal has been preferred.

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5. Mr. C.R.Sahu, learned counsel for the appellant, would submit that the appellant has been falsely implicated, he has not committed any offence and there is no legally admissible evidence to maintain the conviction for the aforesaid offences and, as such, the appellant is entitled for acquittal on the basis of benefit of doubt. He further submits that at the most, the case

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of appellant would fall under Exception 4 to Section 300 of I.P.C. and therefore his conviction under Section 302 of I.P.C. can be altered either to Part-I or Part-II of Section 304 of I.P.C., as he is in jail since 16.09.2014.

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6. Mr. Ali Asgar, 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 it is not a case where the conviction of the appellant under Section 302 of I.P.C. can be converted either to Part-I or Part-II of Section 304 of I.P.C. and, as such, the appeal deserves 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 as to whether the death of deceased Muti Bai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-13 proved by Dr. S.K.Tigga (PW-7), according to which, cause of death was shock due to injury to neck, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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9. Basically, the trial Court has convicted the appellant holding that on the date and time of offence, he was inside the house alongwith his wife Buti Bai (deceased). Panchram (PW-1) and Mangal Say (PW-2) both have seen the appellant coming out from his

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house in the morning armed with axe and furthermore, he also caused injury to Mangal Say (PW-2), by the blunt side of the axe and, as such, theory of last seen together of appellant and deceased has been found established and the death of the deceased was found to be homicidal in nature. Furthermore, the appellant in his statement under Section 313 Cr.P.C. has not explained as to how and in what circumstances his wife has died in his house and the subsequent conduct of appellant assaulting Mangal Say (PW-2) is also relevant fact under Section 8 of the Indian Evidence Act and on that basis, the trial court has convicted the appellant.

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10. Now, we will examine the aforesaid findings one by one.

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11. Panchram (PW-1), who is the real brother of the appellant, has clearly stated that on the morning of 16.09.2014, he noticed that the door of the appellant’s house was closed, then he called his sister-in-law and when the door was not opened, he opened the door and entered into the house and saw that his sister-in-law Muti Bai was lying dead and the appellant came out from his house. Panchram (PW-1) was declared hostile, but on the leading question being asked, he clearly stated that the appellant on the same day has assaulted Mangal Say (PW-2) by axe immediately after coming out from his house.

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12. Mangal Say (PW-2) has been examined by prosecution and he has clearly stated that on the date of offence, when he was going towards his field, the appellant came out from his house armed with axe and assaulted him by axe. As such, on the date

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and time of offence, the appellant was in his house where the dead body of his wife Muti Bai was found, which is clearly established from the statement of brother of the appellant Panchram (PW-1) and injured witness Mangal Say (PW-2). Furthermore, immediately thereafter, merg intimation was lodged promptly vide Ex.P-1 on 16.09.2014 at 9:25 p.m. naming the appellant herein as assailant and FIR was also registered vide Ex.P-2 on 16.09.2014 at 9:20 p.m. naming the appellant to be author of the crime. Furthermore, once the theory of last seen together of appellant with his wife (deceased) is established and the appellant was seen armed with axe, he was required to explain in the statement under Section 313 of Cr.P.C. which he has not explained, thereby the trial Court invoked Section 106 of the Indian Evidence Act finding no explanation and convicted the appellant.

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

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14. 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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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

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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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16. In the matter of Shambhu Nath Mehra v. The State of Ajmer 1,

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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

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AIR 1956 SC 404

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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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17. 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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2 (2021) 10 SCC 725

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18. 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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19. 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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20. Now, the question is whether the prosecution has discharged its primary responsibility to bring home the offence against the appellant beyond reasonable doubt ?

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3 AIR 1956 SC 460

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4 AIR 1974 SC 778

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21. As discussed herein above, we have already recorded a finding that death of the deceased was homicidal in nature and theory of last seen together of the appellant and deceased has also been established, as the brother of the appellant Panchram (PW-1) and injured witness Mangal Say (PW-2) have clearly seen that the appellant was coming out from his house. Mangal Say (PW-2) has also stated that the appellant came out from the house armed with axe and assaulted him, which the trial Court has also found proved and affirmed. As such, the theory of last seen together has been found proved and the appellant has failed to explain as to how and in what circumstances his wife died inside the house, in statement under Section 313 of Cr.P.C. In that view of the matter, the trial Court is absolutely justified in convicting the appellant for the aforesaid offence under Section 302 of I.P.C. with the aid of Section 106 of the Indian Evidence Act and further looking to the injury received by Mangal Say (PW-2) as per MLC report Ex.25 and blood was found on the seized axe, as per FSL report (Ex.P-18), the appellant has rightly been convicted for the offence under Section 325 of I.P.C.

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22. In view of the above, we do not find any merit in this appeal and accordingly, the appeal deserves to be and is hereby dismissed.

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Sd/Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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Ashok

Shubharam v. State Of Chhattisgarh

Case brief

What is this about?

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Shubharam v. State Of Chhattisgarh

Case brief

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