Allowed

Dhob Singh Gond v. State of Chhattisgarh

Chhattisgarh HC13 Jun 2024CRA/1004/2018

Case brief

AI extract

What is this about?

Appeal against life imprisonment for murdering the appellant's wife with an axe. The sole eyewitness turned hostile; extra-judicial confession was weak and recovery on memorandum alone insufficient. Conviction set aside and appellant acquitted on benefit of doubt.

What did the court decide?

Impugned conviction and sentence under Section 302 IPC set aside; appellant acquitted on benefit of doubt and directed to be released forthwith.

Dhob Singh Gond Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 1004 of 2018

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{Arising out of judgment dated 27.02.2018 passed in Sessions Trial No.59/2017 by the learned Sessions Judge, Raigarh}

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Dhob Singh Gond, S/o. Ameer Singh Gond, Aged About 45 Years, Caste Gond, Occupation Cultivator, R/o. Village Kaharchuan, Police Station And Tahsil Lailunga, District Raigarh, Chhattisgarh.

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Versus

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State Of Chhattisgarh, Through The Station House Officer, Police Station Lailunga, 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. Santosh Bharat, Advocate For Respondent : Mr. H.A.P.S. Bhatia, Panel Lawyer

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(Division Bench)

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

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Judgment On Board (14.06.2024)

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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 27.02.2018, passed by the learned Sessions Judge, Raigarh, in Sessions Trial No.59/2017,

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by which, the appellant herein has been convicted for the offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.1000/-, in default of payment of fine, 2 months additional rigorous imprisonment.

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2. Case of the prosecution, in brief, is that on 23.02.2017 at about 6:00 a.m. at village Kaharchunwa, Police Station Lailunga, the appellant herein assaulted his wife Smt. Ramha Bai (now deceased) by a sharp edged weapon axe, by which, she suffered grievous injuries and died. The matter was reported to the police by Ravishankar (PW-1), pursuant to which, Merg Intimation was registered vide Ex.P-1, FIR was registered vide Ex.P-2, Inquest was conducted vide Ex.P-4 and dead body of deceased Ramha Bai was subjected to post-mortem, which was conducted by Dr. Yogeshwar Singh Sarathiya (PW-15), who proved the post-mortem report Ex.P-23, in which, cause of death was stated to be hemorrhagic and neurogenic shock from multiple incised wound all over body from hard and sharp object and death was homicidal in nature. Pursuant to memorandum statement of the appellant Ex.P-7, axe was recovered vide Ex.P-8 along-with clothes, which were sent for chemical examination to FSL and as per the FSL report (Ex.P-22), human blood was found on the axe and

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clothes i.e. shirt & saree. After due investigation, appellant was charge-sheeted for the aforesaid offence under Section 302 of I.P.C. before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the 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 15 witnesses and exhibited 23 documents and the appellant-accused in support of his defence has neither examined any witness nor 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 offence under Section 302 of Indian Penal Code and sentenced him to undergo life imprisonment against which the present appeal has been preferred.

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5. Mr. Santosh Bharat, learned counsel for the appellant would submit that since the eye-witness Reetala Kunwar (PW-7), who is mother of the appellant, has turned hostile, Section 106 of the Indian Evidence Act would not be applicable. Furthermore, the extra-judicial confession

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given by the appellant to Bhagwati Bai (PW-8) is not voluntarily and true, therefore, it is not acceptable in evidence and though pursuant to memorandum statement of the appellant, bloodstained axe has been seized, but in absence of the evidence connecting the appellant in the crime in question only on the basis of memorandum, the appellant could not have been convicted and therefore, he is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed.

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6. Mr. H.A.P.S. Bhatia, 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 the trial Court has rightly convicted the appellant herein for offence punishable under Section 302 of I.P.C. He further submits though the eye-witness Reetala Kunwar (PW-7) has turned hostile, but the appellant is not entitled for acquittal and 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 Ramha Bai was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-23) proved by Dr. Yogeshwar Singh Sarathiya (PW-15), according to which, cause of death was stated to be hemorrhagic and neurogenic shock from multiple incised wound all over body from hard and sharp object and death was homicidal in nature, 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. Now, the next question is, whether the appellant has caused the death of deceased Ramha Bai ?

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10. The conviction of the appellant is based on direct evidence of Reetala Kunwar (PW-7) and extra judicial confession made by the appellant to Bhagwati Bai (PW-8) and pursuant to memorandum statement of the appellant, axe has been recovered, which has been supported by Chaitram (PW-9), in which, human blood has been found as per FSL report Ex.P-22.

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11. We will take up the direct evidence first, as eye-witness Reetala Kunwar (PW-7) who is mother of the appellant

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was also residing with the appellant and deceased; however, she has completely turned hostile and has not supported the case of the prosecution at all. Therefore, the statement of the eye-witness Reetala Kunwar (PW-7) is of no use to the prosecution, however, the trial Court has invoked Section 106 of the Indian Evidence Act to convict the appellant for the offence under Section 302 of I.P.C.

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12. At this stage, it would be appropriate to quote Section 106 of the Indian Evidence Act, 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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13. The said 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 Indian Evidence Act, the main point to be established by prosecution is that the accused persons were in such a

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position that they could have special knowledge of the fact concerned.

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14. In the matter of Murlidhar and others v. State of

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Rajasthan1 , their Lordships of the Supreme Court have held that since the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and therefore, the principle in Section 106 of the Indian Evidence Act could not apply and observed as under:-

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“22 . In our judgment, the High Court was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. As pointed out in Mir Mohammad Omar (supra) and Shambu Nath Mehra (supra), the rule in Section 106 of the Evidence Act would apply when the facts are “especially within the knowledge of the accused” and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, “especially within the knowledge of the accused”. In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the principle in Section 106 could not apply. On the other hand, the prosecution proceeded on the footing that there were eyewitnesses to the fact of murder. The prosecution took upon itself the burden of examining Babulal (PW-5) as eyewitness. Testimony of Ram Ratan (PW-7) and Isro (PW10) shows that their agricultural land was situated in a close distance from the house of Khema Ram. As rightly pointed out by the High Court, it is highly unlikely and improbable that their kith and kin Ramlal would have been given beating resulting in his death by the accused-appellants while keeping lights of their house on and door of the room

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1 AIR 2005 SC 2345

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opened. It is also unlikely that the accusedappellants would have taken the risk of dragging Ramlal to the house of Khema Ram, which was situated in the vicinity of agricultural land and well of Isro (PW-10), the father of Ramlal.

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23. In the result, we are of the view that the prosecution having put forward a case that, what transpired after Ramlal was dragged away by the assailants was within the knowledge of witnesses, utterly failed in proving the said facts. Once this is established, it was not open for the High Court to have fallen back on the rule of burden of proof under Section 106 of the Evidence Act. In fact, as we notice, it was nowhere the case of the prosecution that Section 106 of the Evidence Act applied to the facts on record. The High Court seems to have brought it out on its own, but without any justification. We are, therefore, of the view that the conviction of Murlidhar, Chhaju Ram and Babu Lal s/o Chhaju Ram under Section 364, IPC is justified and liable to be confirmed, but their conviction under Section 302/34, IPC cannot be sustained and they are liable to be of the said charges. ”

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15. Recently, in the matter of Balvir Singh v. State of Uttarakhand2 , their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the Indian Evidence Act, have held that Section 106 has to be applied in criminal cases with care and caution and held in paragraphs 41 to 48 as under:-

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“41. Thus, from the aforesaid decisions of this Court, it is evident that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is

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2 2023 SCC OnLine SC 1261

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not in any way modified by the provisions contained in Section 106 of the Evidence Act.

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42. Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden of the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused.

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43. Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory. If in such a situation, the accused gives an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams:

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“All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence.”

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44. To recapitulate the foregoing : What lies at the bottom of the various rules shifting the

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evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is therefore for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions. If the accused had a different intention that is a fact especially within his knowledge and which he must prove (see Professor Glanville Williams—Proof of Guilt, Ch. 7, page 127 and following) and the interesting discussion—para 527 negative averments and para 528—“require affirmative counter-evidence” at page 438 and foil, of Kenny's outlines of Criminal Law, 17th Edn. 1958.

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45. But Section 106 has no application to cases where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happened to be present when it took place. From the illustrations appended to the section, it is clear that an intention not apparent from the character and circumstances of the act must be established as especially within the knowledge of the person whose act is in question and the fact that a person found travelling without a ticket was possessed of a ticket at a stage prior in point of time to his being found without one, must be especially within the knowledge of the traveler himself:see Section 106 of the Indian Evidence Act, illustrations (a) and (b).

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46. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the

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foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence which if believed by the court would convince them of the accused's guilt beyond a reasonable doubt, the accused is in a position where he should go forward with counter-vailing evidence if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might have been rebutted. Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution (Wharton's Criminal Evidence, 12th Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Leland v. State reported in 343 U.S. 790=96 L.Ed. 1302, Raffel v. U.S. reported in 271 U.S. 294=70 L.Ed. 1054.

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WHAT IS “PRIMA FACIE CASE” IN THE CONTEXT OF SECTION 106 OF THE EVIDENCE ACT?

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47. The Latin expression prima facie means “at first sight”, “at first view", or "based on first impression". According, to Webster’s Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “eviIdeuce sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima

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facie evidence for each element of the charges against the defendant. If they cannot present prima facie evidence, or if an opposing party introduces contradictory evidence, the initial claim may be dismissed without any need for a response by other parties.

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48. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding death. ”

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16. Reverting to the facts of the case in light of the aforesaid principles of the law laid down by their Lordships of the Supreme Court in the matters of Murlidhar (supra) and Balvir Singh (supra) and the provisions contained in Section 106 of the Indian Evidence Act, the trial Court is absolutely unjustified in invoking Section 106 of the Indian Evidence Act in the case of presence of eye witness (PW-7) to convict the appellant for the offence in question as it is the case of the prosecution that Reetala Kunwar (PW-7) is the eye-witness who had seen the incident as she was also residing along-with the appellant and deceased.

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17. In the shape of other evidence, the prosecution has brought the statement of Bhagwati Bai (PW-8) to whom the appellant had given the extra-judicial confession, however, perusal of the statement of PW-8 would show that she had heard the appellant saying that he has murdered his wife, but it is not a case that the appellant

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has given extra-judicial confession to her and it would be unacceptable that a person would confess to the villager in the public place near bore-well and, as such, the extrajudicial confession is a weak piece of evidence.

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18. The next piece of evidence is that pursuant to memorandum statement of the appellant, the bloodstained axe was seized, which has been supported by Chaitram (PW-9) and as per FSL report (Ex.P/22) on the weapon of offence i.e. axe human blood was found which is relevant fact under Section 8 of the Indian Evidence Act. Very recently, the Supreme Court in the matter of Subramanya v. State of Karnataka 3 has clearly held that subsequent conduct of the accused may be relevant fact under Section 8 of the Indian Evidence Act, but it cannot form basis for conviction that too for offence of murder and observed in para 95 as under :-

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“95. In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under

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3 2022 SCC OnLine SC 1400

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Section 8 of the Evidence Act, cannot form the basis of conviction.”

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19. Furthermore, the Supreme Court in the matter of Babboo

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& Others v. State of Madhya Pradesh4 has considered

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the probative value of recovery of article on the information of the accused and it has been held that as there was no substantive evidence worth the name, the recovery of Katarnas on the information given by the accused would hardly advance the prosecution case against the accused. As such, merely recovery on the basis of memorandum statement of the appellant would not complete the chain of circumstances as held by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra5 to connect the appellant for the offence under Section 302 of I.P.C. unless further evidence would brought on record that the appellant is the author of the crime.

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20. In view of the aforesaid discussion, we are of the considered opinion that the prosecution has failed to discharge its primary burden of proving its case beyond reasonable doubt and, as such, the appellant is entitled for acquittal on the basis of principles of benefit of doubt. Accordingly, t he impugned judgment dated 27.02.2018

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AIR 1979 SC 1042

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5 (1984) 4 SCC 116

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passed by the trial Court convicting and sentencing the appellant for the offence under Section 302 of the IPC is hereby set aside and the appellant is acquitted from the said offence on the ground of benefit of doubt. Appellant is stated to be in jail since 24.02.2016, we direct that he be released from the jail forthwith, if not required in any other matter.

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21. In the result, this criminal appeal is allowed.

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22. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information and action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence.

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

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Ashok

Dhob Singh Gond v. State of Chhattisgarh

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Dhob Singh Gond v. State of Chhattisgarh

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