Allowed

Sahdev Singh @ Birjhu v. State Of Chhattisgarh

Chhattisgarh HC14 Feb 2024CRA/1065/2017

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed an appeal against a murder conviction, acquitting the appellant on the principle of benefit of doubt. Setting aside the trial court's order under Section 302 IPC, the bench held that the prosecution had not established a prima facie case to properly invoke Section 106 of the Evidence Act, rendering the conviction unsustainable.

What did the court decide?

The conviction and sentence dated 22.03.2017 under Section 302 IPC are set aside; the appellant is acquitted and directed to be released from jail forthwith.

Sahdev Singh @ Birjhu Vs State Of… — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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CRA No. 1065 of 2017

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1065 of 2017

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(Arising out of judgment dated 22.03.2017 passed in Sessions Trial No.98/2015 by the 1^st Additional Sessions Judge, Surajpur, District Surajpur, C.G.)

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Sahdev Singh @ Birjhu S/o Shri Balsai, aged about 55 years, R/o Village Kuppi – Bhandarpara, Thana – Odagi, District Surajpur, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh through Police Station House Odagi, District Surapur, Chhattisgarh.

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---- Respondent

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For Appellant :- Mr. Gajendra Sahu, Advocate. For State/Respondent :- Mr. Shaleen Singh Baghel, Deputy Government Advocate.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sachin Singh Rajput Judgment On Board (15.02.2024)

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Sanjay K. Agrawal, J

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Invoking jurisdiction of this Court under Section 374(2) of the CrPC, the sole appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of

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CRA No. 1065 of 2017

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sentence dated 22.03.2017 passed by the 1^st Additional Sessions Judge, Surajpur, District Surajpur, Chhattisgarh in Sessions Trial No.98/2015 by which he has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and to pay fine of 500/-; in default of payment of fine additional simple₹ imprisonment for 6 months.

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Case of the prosecution, in nutshell, is that on 18.03.2015 between 9:00 am to 1:00 pm, at village Kuppi – Bhandarpara, Thana – Odagi, District Surajpur, Chhattisgarh, appellant assaulted his wife Dhanmat Bai (now deceased) on her head by wooden stick by which she suffered grievous injuries and died and thereby committed the aforesaid offence. It is further case of the prosecution that on the date of offence, when Shivkumar (PW-1), son of the appellant and the deceased, came to the house, he saw that his father (appellant) was sleeping on the cot and his mother was lying dead on the floor and blood was oozing out from her mouth, thereafter, he informed about the said incident to other family members and he (PW-1) also informed the police about the said incident pursuant to which FIR was registered vide Ex.P/1. Crime details form was prepared vide Ex.P/3 and dead body supurdnama was

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prepared vide Ex.P/2. Inquest proceedings (Ex.P/6) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/13) proved by Dr. Ranjit Toppo (Ex.P/12), cause of death was external as well as internal cranial haemorrhage and homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P/8) wooden stick has been seized vide Ex.P/9. Seized articles weer sent for chemical analysis to FSL and in FSL report (Ex.P/15) on the wooden stick stains of blood has not been found.

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After due investigation, appellant herein was chargesheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence.

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In order to bring home the offence, prosecution has examined as many as 15 witnesses and exhibited 15 documents and defence in support of its case has neither examined any witness nor exhibited any document. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence

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brought on record by the prosecution, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

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Mr. Gajendra Sahu, learned counsel for the appellant, submits that appellant has falsely been implicated in crime in question and he has been convicted by recording a finding which is perverse to the record. He also submits that the trial Court is absolutely unjustified in convicting the appellant by invoking Section 106 of the Indian Evidence Act, 1872 (for short 'the Evidence Act') in absence of incriminating circumstances and there is no evidence that the appellant was present on the date and time of offence and even otherwise, evidence in the light of Section 106 of the Evidence Act, if any, non-explanation can only be used as an additional circumstance, but that would not complete the chain of circumstances in view of

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the decision rendered by their Lordships of the Supreme

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Court in the matter of Sharad Birdhichand Sarda v.

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State of Maharashtra1 , therefore, the instant appeal deserves to be allowed and the appellant is entitled for acquittal on the basis of benefit of doubt.

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On the other hand, Mr. Shaleen Singh Baghel, learned State counsel, supports the impugned judgment and submits that prosecution has been able to bring home the offence beyond reasonable doubt. He also submits that the appellant herein in his statement under Section 313 of the CrPC has failed to explain as to how and under what circumstances his wife died and, as such, the trial Court is absolutely justified in convicting the appellant for the aforesaid offence after applying Section 106 of the Evidence Act and, therefore, the appellant is not entitled to be acquitted on the basis of benefit of doubt and the instant appeal deserves to be dismissed.

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We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

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1 (1984) 4 SCC 116

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CRA No. 1065 of 2017

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Now, the first question is, whether the death of the deceased was homicidal in nature?

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In this regard, the learned trial Court has recorded the finding in affirmative that death of the deceased was homicidal in nature on the basis of postmortem report (Ex.P/13) proved by Dr. Ranjit Toppo (PW-12), which is the finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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Now, the question for consideration would be whether the appellant is the author of crime in question?

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In the instant case, the prosecution is only projected that the appellant and her wife (deceased) both were residing in the same house and seen by Shivkumar (PW-1), son of the appellant and the deceased, and Nanki Bai (PW-6) mother of the appellant and as such, the trial Court has invoked Section 106 of the Evidence Act to base the conviction of the appellant as the appellant could not explain in his statement under Section 313 of the CrPC as to how and under what circumstance his wife died.

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Now, the question would be whether the Section 106 of the Evidence Act has rightly been made applicable by the trial Court while convicting the appellant for offence under Section 302 of the IPC ?

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At this stage, it would be appropriate to quote 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 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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CRA No. 1065 of 2017

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In the matter of Shambhu Nath Mehra v. The State of

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Ajmer 2, 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 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

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2 AIR 1956 SC 404

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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 3 in which it has been held by their Lordships of the Supreme Court as

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under: -

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“19. In this case, as mentioned above, neither the prosecution witnesses have deposed to that effect nor any other material has been placed on record to show that the relationship between the appellant and the deceased was strained in any manner. Moreover, the appellant was not the only person residing in the house where the incident took place and it is brought on record that the parents of the appellant were also present on the date of the incident in the house. The fact that other members of the family of the appellant were present shows that there could be another hypothesis which cannot be altogether excluded. Therefore, it can be said that the facts established do not rule out the existence of any other hypothesis. The facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant.

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Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has

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3 (2021) 10 SCC 725

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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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Similarly, the Supreme Court in the matter of Gurcharan

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Singh v. State of Punjab 4, 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

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4 AIR 1956 SC 460

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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 5 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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In the matter of Shivaji Chintappa Patil v. State of

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Maharashtra6 relying upon the Subramaniam v. State of Tamil Nad u 7 their Lordships have held that when the husband and wife remaining within four walls of a house and death taking place, it would be a strong circumstance, but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive and observed

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5 (1974) 4 SCC 193

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6 (2021) 5 SCC 626

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7 (2009) 14 SCC 415

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in paragraph 20 as under:-

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“20. That leads us to the reliance placed by the High Court as well as the trial court on the provisions of Section 106 of the Evidence Act. In Subramaniam (supra), this Court had occasion to consider the similar case of the husband and wife remaining within the four walls of a house and death taking place. It will be relevant to refer to the following observations of this Court:-

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“23. So far as the circumstance that they had been living together is concerned, indisputably, the entirety of the situation should be taken into consideration. Ordinarily when the husband and wife remained within the four walls of a house and a death by homicide takes place it will be for the husband to explain the circumstances in which she might have died. However, we cannot lose sight of the fact that although the same may be considered to be a strong circumstance but that by alone in the absence of any evidence of violence on the deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and the husband alone was responsible therefor.””

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Similarly, their Lordships in Shivaji Chintappa Patil

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(supra) have relied upon the decision of Gargi v. State of Haryana8 and observed in paragraphs in 22 & 23 as

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under:-

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“22. It will also be relevant to refer to the following observations of this Court in the case of Gargi (supra):-

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“ 33.1. Insofar as the “last seen theory” is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last

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8 (2019) 9 SCC 738

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person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The trial court and the High Court have proceeded on the assumption that Section 106 of the Evidence Act directly operates against the appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das (supra) in the following:

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“10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. 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.””

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It could thus be seen, that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. 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 would lie upon the accused.”

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Further, in Shivaji Chintappa Patil (supra) relying upon

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the decision of Sharad Birdhichand Sarda v. State of Maharashtra9 their Lordships further have concluded that

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9 (1984) 4 SCC 116

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by now it is well settled that principle of law, that false explanation or non-explanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the accused. However, it cannot be used as a link to complete the chain of circumstances.

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- 24. Similarly, in the matter of Balvir Singh v. State of Ut tarakhand10 , their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the 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 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

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10 2023 SCC OnLine SC 1261

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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 legitimateburden. 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 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

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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 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 prac-

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tical 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 “evi-Ideuce 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 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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Thereafter, recently, in the matter of Santosh @ Bhure v.

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State (G.N.C.T.) of Delhi11 it has been held that even if

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the accused fails to explain as to how the dead body of the deceased was found in his apartment, an inference of his guilt cannot be drawn. In nutshell, in any case the prosecution has to elevate its case from the realm of “may

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11 2023 LiveLaw (SC) 418

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be true” to the plane of “must be true” as is indispensably required for conviction on the criminal charge.

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Returning to the facts of the present case in the light of the principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments, it is quite vivid that when Shivkumar (PW-1), reached to the spot after the incident he saw his mother (deceased) was lying dead on the floor and father (appellant) was sleeping on the cot, as such, subsequent conduct of the appellant herein that though his wife lying dead, he was sleeping, is an objectionable conduct which would be relevant fact under Section 8 of the Indian Evidence Act, 1872, however, on the basis of that fact the accused/appellant cannot be convicted for offence under Section 302 of the IPC in the light of the decision rendered by their Lordships of the Supreme Court in the matter of Subramanya v. State of

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Karnataka 12 . Now, the next witness Nanki Bai (PW-6), mother of the appellant, in her statement before the Court has stated that on the date of offence, in the morning, she had seen the appellant and the deceased taking tea when she was going to village Singhpana to meet her daughter, thereafter, the dead body of the deceased was found in the

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12 2022 SCC OnLine SC 1400

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afternoon at 1:00 pm, however, this fact has not put to the accused under Section 313 of the CrPC, therefore, the trial Court is absolutely unjustified in invoking Section 106 of the Evidence Act to convict the appellant for the offence under Section 302 of the IPC and even otherwise, there is considerable time gap when the deceased was last seen alive by Nanki Bai (PW-6) and other witnesses with the accused/appellant herein and even otherwise non explanation on the part of the appellant would be additional circumstance but, that would not complete the chain of circumstances as laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand

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Sarda (supra). In that view of the matter, the appellant is entitled to be acquitted from the offence punishable under Section 302 of IPC on the basis of benefit of doubt.

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Accordingly, t he impugned judgment dated 22.03.2017 passed by the trial Court convicting and sentencing the appellant for the offence under Section 302 of IPC, is hereby set aside/quashed and the appellant is acquitted from the said offence on the basis of principles of benefit of doubt. Appellant is stated to be in jail since 28.05.2015, we direct that he be released from the jail forthwith, if not required in any other matter.

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This criminal appeal is allowed .

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be supplied to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge

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Ankit

Sahdev Singh @ Birjhu v. State Of Chhattisgarh

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Sahdev Singh @ Birjhu v. State Of Chhattisgarh

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