Dismissed

Minesh Kumar Nishad v. State Of Chhattisgarh

Chhattisgarh HC4 Oct 2023CRA/715/2015

Case brief

AI extract

What is this about?

In a criminal appeal challenging a conviction for murder, the High Court upheld the trial court's finding that the death was homicidal. The court affirmed the conviction based on circumstantial evidence including a strong motive, theory of last seen together, and the appellant's failure to provide an explanation for the injuries under Section 106 of the Evidence Act.

What did the court decide?

The appeal was dismissed, the conviction under Section 302 IPC was upheld, and the judgment and order of sentence were confirmed.

Minesh Kumar Nishad Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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(Criminal Appeal No.715 of 2015)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 715 of 20 15

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Minesh Kumar Nishad, Son of Chandan Nishad, aged about 26 years, Resident of Village Ramkheda, Police Station Patewa, District Mahasamund (Chhattisgarh)

---- Appellant

(In Jail)

Versus

State of Chhattisgarh, through Station House Officer Patewa, District Mahasamund, (Chhattisgarh)

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---- Respondent

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For Appellant : Mrs. Savita Tiwari, Advocate/Panel Lawyer appointed through High Legal Services Committee For Respondent-State : Mr. Ashish Tiwari, G.A. ---------------------------------------------------------------------------------

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal and 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) In this criminal appeal filed under Section 374(2) of Cr.P.C. the accused-appellant is calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 17.03.2015, passed by 2^nd Addl. Sessions Judge, Mahasamund in Sessions Case No.36 of 2014, whereby he has been convicted for offence under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.2,000/and, in default of payment of fine amount, sentenced to undergo additional simple imprisonment for 06 months.

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(Criminal Appeal No.715 of 2015)

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(2) The case of the prosecution, in short, is that in the intervening night of 07.04.2014 till 08.04.2014, at Village Ramkheda within the ambit of Police Station Patewa, in his own house, the accused-appellant herein assaulted his wifeDurgeshwari @ Durga (hereinafter referred to as “deceased”) by means of a ‘tangiya’ (axe), due to which she suffered grievous injuries and died and, thereby, the appellant is said to have committed offence under Section 302 of IPC.

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(3) It is further case of the prosecution that the marriage of the appellant was solemnized with the deceased 1½ months prior to the date of offence. On the date of offence, the deceased was carrying pregnancy of one month and, on account of which, the appellant used to suspect her character and he has also complained about the same to his father- Chandan Nishad, who in turn, advised him to take his wife (deceased) for medical test. However, on 07.04.2014, in the night at about 10:00 PM, complainant- Chandan Nishad and his wife- Rajo Bai (PW-12) [father and mother of the appellant] both had gone to some religious function and returned from there at about 11:00 PM and, while going to the said religious function, they have seen the appellant and the deceased sleeping in a separate room. On the next morning, i.e. on 08.04.2014, when the appellant and the deceased were missing, the complainant- Chandan Nishad asked Rajo Bai (PW-12) to inquire about the whereabouts of them in their room, upon which, when Rajo Bai (PW-12) gone towards

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(Criminal Appeal No.715 of 2015)

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their room, she found the door was locked from outside and, upon opening the door, she found the deceased lying on the bed in injured condition, blood was oozing out, injuries were suffered on her neck and the appellant was missing/absconding.

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(4) Thereafter, on the report so lodged by the complainantChandan Nishad, the police registered marg intimation (Ex.P/10) and FIR (Ex.P/11) and wheels of investigation started running, in which, inquest proceedings were conducted vide Ex.P/01 and ‘panchnama’ was prepared vide Ex.P/02. Spot map was also prepared vide Ex.P/10. The dead-body of deceased was sent for postmortem examination and in the postmortem report (Ex.P/22), conducted by Dr. Hemant Chandrakar (PW-11), it was opined that the cause of death of deceased is syncope caused by cut throat injury over neck up to trachea resulting in hemorrhage and shock and nature of death is homicidal. Thereafter, the accusedappellant was arrested vide Ex.P/20 and his memorandum statement was recorded vide Ex.P/03. The weapon of the offence i.e. ‘tangiya’ (axe) alongwith other articles have been seized from the ‘badi’ situated near the place of occurrence vide Ex.P/04. The aforesaid seized article were sent for FSL examination vide Ex.P/18, but no FSL report has been brought on record for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the competent court of criminal jurisdiction and, ultimately, the case was committed to

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the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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(5) The prosecution in order to prove its case examined as many as 12 witnesses and exhibited 24 documents, whereas the appellant-accused has neither examined any witness nor exhibited any document in support of his defence.

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(6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence under Section 302 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

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(7) Mrs. Savita Tiwari, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. She further submits that except the statement of Rajo Bai (PW-12) there is no iota of evidence available on record to establish that on the date and time of the offence, the appellant and the deceased both were residing together in the same house. Indeed, Rajo Bai (PW-12) has clearly stated before the Court that two days’ prior to the incident, the

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appellant has left his house and village for earning livelihood. As such, the circumstances pointed by the learned trial Court are not sufficient to maintain the conviction of the appellant and, therefore, the impugned judgment of conviction and order of sentence passed by the learned trial Court is liable to be set aside and the appellant deserves to be acquitted from the said charge.

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(8) Per-contra , Mr. Ashish Tiwari, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The prosecution has clearly established the death of the deceased to be homicidal in nature alongwith other incriminating circumstances i.e. theory of last seen together by Rajo Bai (PW12), motive on the part of the appellant to commit the offence and further the appellant has failed to explain as to how and in what manner the deceased suffered injuries and died in his house in his statement recorded under Section 313 of CrPC and thereby attracting Section 106 of the Indian Evidence Act, 1872 (for short the “Evidence Act”) and, the appellant also remained absconded immediately after the incident, which is relevant fact/subsequent conduct of the appellant under Section 08 of the Evidence Act. As such, the conviction and sentence passed by the learned trial Court against the appellant is well merited and, therefore, present appeal deserves to be dismissed.

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(Criminal Appeal No.715 of 2015)

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(9) 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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(10) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/22), wherein it has been opined that cause of death of deceased is syncope caused by cut throat injury over neck up to trachea resulting in hemorrhage and shock and nature of death is homicidal, which is duly proved by the statement of Dr. Hemant Chandrakar (PW-11), who has conducted postmortem on the dead-body of the deceased. Accordingly, taking into consideration the postmortem report (Ex.P/22) and the statement of Dr. Hemant Chandrakar (PW-11), we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

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(11) Now, the next question would be whether the accusedappellant herein is the author of the crime in question or not ?

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(12) The instant case is based on following circumstantial evidence putfourth by the prosecution and found proved by the learned trial Court:-

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(i) theory of last seen together by Rajo Bai (PW-12);

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(Criminal Appeal No.715 of 2015)

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(ii) motive on the part of the appellant to commit the offence/murder of the deceased;

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(iii) subsequent conduct of the appellant whereby he absconded immediately after the incident, which is relevant fact under Section 08 of the Evidence Act; and

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(iv) the appellant has failed to explain as to how and in what manner the deceased suffered injuries and died in his house, in his statement recorded under Section 313 of CrPC and thereby attracting Section 106 of the Evidence Act.

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(13) Before proceeding further, it is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs.

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State of Maharashtra1 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as

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under:

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“153. …. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made:

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"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

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1 (1984) 4 SCC 116

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Page 8 of 18

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(Criminal Appeal No.715 of 2015)

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(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,

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(3) the circumstances should be of a conclusive nature and tendency.

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

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(14) We shall now consider each of the incriminating circumstances one by one.

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Theory of last seen together and plea of alibi:-

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(15) In the instant case, the matter was reported to the police by Chandan Nishad (father of the appellant), but on account of his sudden death during the pendency of trial, he could not be examined as a witness. However, Rajo Bai (PW-12), who is wife of Chandan Nishad and mother of the appellant, has clearly stated before the Court that her daugther-in-law (deceased) and son (appellant) used to reside in the same house in a separate room and, on 07.04.2014, in the night at about 09-10 PM, she alongwith her husband- Chandan Nishad had gone to some religious function and returned from there at about 11:00 PM and, while going to the said religious function, they have seen the appellant and the deceased sleeping in a separate room. On the next morning, i.e. on 08.04.2014, when the appellant and the

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Page 9 of 18

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(Criminal Appeal No.715 of 2015)

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deceased were missing, her husband- Chandan Nishad asked her to inquire about the whereabouts of the appellant and the deceased, she gone towards their room and found the door was locked from outside and, upon opening the door, she found the deceased lying on the bed in injured condition, blood was oozing out, injuries were suffered on her neck and the appellant was missing/absconding. Though, in subsequent paragraph of her statement she has stated that the appellant was not in the house, but we are of the considered opinion that the appellant was in the house on the date of offence and plea of alibi, which the appellant sought to be proved, is not established.

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(16) Further, plea of alibi has been considered by the Supreme Court in the matter of Darshan Singh v. State of Punjab 2 and it has been held as under: -

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“The word alibi means “elsewhere”. The plea of alibi is not one of the General Exceptions contained in Chapter IV of IPC. It is a rule of evidence recognized under Section 11 of the Evidence Act. However, plea of alibi taken by the defence is required to be proved only after prosecution has proved its case against the accused. In the present case said condition is fulfilled.”

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(17) It is well settled that strict proof is required for establishing plea of alibi and finding of fact disbelieving the plea of alibi based on weight and sturdy reasons should not be interfered with. (See

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Binay Kumar Singh v. State of Bihar 3.)

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(18) It is well settled that a plea of alibi must be proved with 2 (2016) 3 SCC 37

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3 AIR 1997 SC 322

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(Criminal Appeal No.715 of 2015)

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absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence.

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(See State of Maharashtra v. Narsingrao Gangaram Pimple 4.)

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(19) In the matter of Sahabuddin and another v. State of Assam 5, their Lordships of the Supreme Court have held that once the Court disbelieves the plea of alibi and the accused does not give any explanation in his statement under Section 313 of the CrPC, the Court is entitled to draw adverse inference against the accused taking the plea of alibi.

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(20) Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in above mentioned matters with regard to plea of alibi, it is quite vivid that the plea of alibi so taken by appellant that he was not in the house and village at the time of incident is solely based on a bald statement of the mother of the appellant, namely, Rajo Bai (PW-12) that she had knowledge that two days’ prior to the date of incident, the appellant had left the house and village for earning livelihood and except this there is no other corroborating, legally admissible evidence available on record to substantiate the fact that appellant was not really in the house and village at the time of commission of offence in question and, that being the reason, the learned trial Court in its judgment has not found the plea of alibi to be proved. Therefore, the plea of alibi raised on behalf of

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4 AIR 1984 SC 63

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5 (2012) 13 SCC 213

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(Criminal Appeal No.715 of 2015)

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appellant is vacillating plea and it has rightly been rejected by learned trial Court. As such, the theory of last seen together of the appellant alongwith the deceased on the date of offence has been duly established and found proved by the learned trail Court on the basis of the statement of Rajo Bai (PW-12), which in our considered opinion is the correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

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Motive of the offence:-

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(21) The learned trial Court has found proved and attributed motive on the part of the appellant to commit offence, as marriage of the appellant was solemnized with the deceased 1½ months prior to the date of incident and, on the date of incident, deceased was carrying pregnancy of 01 month and, therefore, the appellant developed suspicion about the character of his wife (deceased) and he has also made complaint about the same to his fatherChandan Nishad, who in turn, advised him to take the deceased for medical test. However, the appellant did not accept the advise of his father and his suspicion led to commission of the offence, which the learned trial Court has found as motive on the part of the appellant for commission of the offence. Thus, after hearing the counsel for the parties and after going through the record and particularly considering Para-07 of the statement of Rajo Bai (PW12) [mother of the appellant], we are of the considered opinion

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(Criminal Appeal No.715 of 2015)

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that the learned trial Court is absolutely justified in holding the motive to be proved and found established beyond reasonable doubt on account of the fact that the appellant had strong motive to commit murder of his wife (deceased), as he used to suspect her character. We hereby hold accordingly.

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Subsequent conduct of the appellant:-

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(22) Admittedly, the learned trial Court has further recorded a finding that as per the statement of Rajo Bai (PW-12), immediately on the next morning, the appellant was absconding and was not in the house, though in the night he was sleeping alongwith his wife (deceased) in the house in a separate room and, thereafter, he was apprehended on 09.04.2014. The subsequent conduct of the appellant in leaving his wife (deceased) in injured condition is also relevant fact under Section 08 of the Evidence Act, which is admissible in evidence. We hereby hold accordingly.

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Applicability of Section 106 of the Evidence Act:-

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(23) The learned trial Court, in the instant case, after holding the death of the deceased to be homicidal in nature and duly found proved and established the motive on the part of the appellant to commit the offence coupled with the theory of last seen together and further found the subsequent conduct of the appellant in absconding to be relevant fact under Section 08 of the Evidence Act and admissible in evidence, held that in absence of any explanation by the appellant as to how and in what manner his

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wife (deceased) suffered injuries and died, in his statement recorded under Section 313 of CrPC, Section 106 of the Evidence Act would be applicable.

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(24) At this stage, it would be appropriate to quote Section 106 of the Indian Evidence Act, 1872, which 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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(25) 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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(26) In the matter of Shambhu Nath Mehra v. The State of Ajmer 6, 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

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6 AIR 1956 SC 404

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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 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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(27) 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 7 in which it has been held by

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7 (2021) 10 SCC 725

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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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(28) Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab 8, 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

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8 AIR 1956 SC 460

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(Criminal Appeal No.715 of 2015)

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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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(29) 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 9 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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(30) The Supreme Court in the matter of Trimukh Maroti Kirkan vs. State of Maharashtra¹⁰ held in Para-22 as under:

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“ 22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh¹¹ it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In

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9 AIR 1974 SC 778

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10 (2006) 10 SCC 681

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11 (1972) 2 SCC 80

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Ganeshlal v. State of Maharashtra¹² the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal¹³ AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time.”

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(31) Returning to the facts of the present case in light of the aforesaid principle of law laid down by their Lordships of the Supreme Court, it is quite vivid that the prosecution has discharged its primary burden of proving its case beyond reasonable doubt by proving the death of the deceased to be homicidal in nature and further proving the motive on the part of the appellant to commit the offence alongwith the theory of last seen together and the plea of alibi sought to be established is not supported by legally admissible evidence as well as the subsequent conduct of the appellant in absconding immediately after the incident, is also relevant fact and admissible in evidence under Section 08 of the Evidence Act and in absence of any explanation in appellant’s statement recorded under Section 313

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12 (1992) 3 SCC 106

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13 AIR 1992 SC 2045

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of CrPC, Section 106 of CrPC has rightly been applied by the learned trial Court, which we do not find any good ground to hold otherwise. We hereby affirm the findings recorded by the learned trial Court in this regard.

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(32) In that view of the matter, we are unable to hold that the prosecution has not been able to prove the five golden principles to constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence, as laid by their Lordships of Supreme Court in the matter of Sharad Birdhichand Sarda (supra) and, in absence of which, we are unable to set aside the impugned judgment of conviction and order of sentence passed by the learned trial Court in convicting the appellant for offence under Section 302 of IPC. Accordingly, the present appeal is liable to be and is accordingly dismissed .

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

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s@if

Minesh Kumar Nishad v. State Of Chhattisgarh

Case brief

What is this about?

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Minesh Kumar Nishad v. State Of Chhattisgarh

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