Allowed

Jhumka Bai Kannauje v. State of Chhattisgarh

Chhattisgarh HC18 Jun 2024CRA/1081/2018

Case brief

AI extract

What is this about?

Chhattisgarh High Court allowed an appeal against a conviction for murder. The court acquitted the appellant, holding that the prosecution failed to prove its case beyond reasonable doubt. Key grounds included the lack of corroboration for the eyewitness and the improper invocation of Section 106 of the Evidence Act.

What did the court decide?

Impugned judgment of conviction and sentence set aside; appellant acquitted and ordered immediate release from jail.

Jhumka Bai Kannauje Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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CRA No. 1081 of 2018

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1081 of 2018

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(Arising out of judgment dated 28.06.2018 passed in Sessions Trial No.29/2017 by the Sessions Judge, Uttar Bastar, Kanker, Chhattisgarh)

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Jhumka Bai Kannauje W/o Late Ramkumar Kannauje, aged about 45 years, R/o Village Aanwari, Police Station Charama, District North Bastar Kanker Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh through the Station House Officer, Police Station Charama District North Bastar Kanker Chhattisgarh.

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---- Respondent

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For Appellant :- Mr. Vinod Kumar Tekam, Advocate. For Respondent/State :- Mr. Vivek Mishra, 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

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(19.06.2024)

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Sanjay K. Agrawal, J

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Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of CrPC has been filed by the appellant calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 28.06.20218 passed by the Sessions Judge, Uttar Bastar, Kanker, Chhattisgarh in Sessions Trial

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No.29/2017 whereby the appellant has been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of ₹ 100/-; in default of payment of fine to undergo additional rigorous imprisonment 1 month.

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The case of the prosecution, in a nutshell, is that on 06.09.2017 at about 10:00 pm at village Aanwari, Police Station Charama, District North Bastar, Kanker, Chhattisgarh the appellant assaulted her husband Ramkumar Kannauje (now deceased) by crowbar by which he suffered grievous injuries and died. The said incident was reported by Santosh Kumar Kannauje (PW-1), son of the appellant and the deceased, pursuant to which merg intimation and FIR were registered vide Exs. P/2 & P/1, respectively. Inquest proceedings (Ex.P/4) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/12), proved by Dr. P.S. Pradhan (Ex.P/5), cause of death was shock due to head injury, fracture of skull bone and homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P/16), crowbar was seized vide Ex.P/17. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/29) on the weapon of offence i.e. crowbar (Article E) human blood was found.

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

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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 11 witnesses and exhibited 29 documents whereas, the appellant in defence has not examined any witness, but exhibited 1 document. Statement of the appellant was recorded under Section 313 of CrPC in which she denied the circumstances appearing against her in the evidence brought on record, 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 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. Vinod Kumar Tekam, learned counsel for the appellant, submits that the appellant has falsely been implicated in crime in question and the trial Court has absolutely unjustified in

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convicting the appellant by recording a finding which is perverse to the record. He also submits that Pannin Bai (PW11), mother of the deceased and mother-in-law of the appellant, is not the eye witness, at the most she is a res gestae witness. He also submits that since it is the case of the prosecution that Pannin Bai (PW-11) is the eye witness, Section 106 of the Indian Evidence Act, 1872 (for brevity “the IEA”) has wrongly been invoked by the trial Court to base the conviction of the appellant. He further submits that the statement of Pannin Bai (PW-11) was recorded on 05.10.2017, whereas, incident took place on 06.09.2017 and there is no explanation has been given by the prosecution with regard to delay in recording statement of Pannin Bai (PW-11) and furthermore, as per FSL report (Ex.P/29) seized articles were received on 04.10.2017, whereas, the same was recovered on 07.09.2017 and also there is no evidence has been brought on record by the prosecution that the seized articles were kept in safe custody during that period, as such, the appellant is entitled for acquittal on the basis of benefit of doubt as the prosecution has failed to proved its case beyond reasonable doubt.

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On the other hand, Mr. Vivek Mishra, learned State counsel, supports the impugned judgment and submits that

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prosecution has been able to prove the offence beyond reasonable doubt and, therefore, the appellant has rightly been convicted for the offence in question. Thus, 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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Now, the first question is, whether the death of the deceased was homicidal in nature?

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The said question has been answered by the trial Court in affirmative that the death of Ramkumar Kannauje (deceased) was homicidal in nature relying upon the postmortem report (Ex.P/12) proved by Dr. P.S. Pradhan (PW-5) which, in our considered opinion, is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the trial Court.

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Now, the question for consideration would be whether the appellant has assaulted the deceased?

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The trial Court has partly relied upon the statement of Pannin Bai (PW-11) to base the conviction of the appellant. A careful perusal of the statement of Pannin Bai (PW-11) before the Court would show that thought she was in the house, but she was staying in the separate room. She has stated before the Court that on the date of offence, some quarrel took place between the appellant and the deceased which was settled by the villagers. She has further stated that after taking dinner everyone went to sleep. In her (PW-11) room Sadhna (PW-2), Santosh (PW-1) and Yamuna (PW-4) were also sleeping and in the other room appellant and deceased were sleeping, thereafter, in the late night at about 10:00 pm door of her (PW11) room was knocked and when she opened the door she saw the appellant standing armed with crowbar and she (appellant) was asking her son Santosh (PW-1) to take her to police as she killed his father. Thereafter, Pannin Bai (PW-11) and others entered into the room of the appellant and deceased where they saw the dead body of the deceased lying in the pool of blood. However, statement of Pannin Bai (PW-11) was recorded after one month of the incident as the incident took place on 06.09.2017 and her statement was recorded on 05.10.2017 vide Ex.D/1. Considering the statement of Pannin Bai (PW-11) vide Ex.D/1, she has been cited as eye witness, however, in

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paragraph no. 4 of her statement before the Court, she has clearly stated that she did not see the appellant assaulting her son (deceased), as such, though she has been cited as an eye witness, but she did not saw the incident, according to her, she reached to the spot immediately after the incident and also saw the appellant outside her room armed with crowbar. In that view of the matter, at the best, she (PW-11) can be called a res gestae witness and her statement is admissible under Section 6 of the IEA. In view of the decision of the Supreme Court in the matters of Badruddin Rukonddim Karpude v. State of Maharashtra1 and Sukhar v. State of Uttar Pradesh2 , at the most, being an admissible evidence and relevant fact under Section 6 of the IEA, no conviction can be recorded on that basis unless it is corroborated by direct or circumstantial evidence.

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In the matter of Sukhar (supra), their Lordships of the Supreme Court, while considering Section 6 of the Evidence Act, have held that for conviction on the basis of admissible evidence under Section 6 of the Evidence Act, it must be corroborated either from oral evidence or from any other circumstances, and observed in paras -10 & 11 as under:-

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“10 . Applying the ratio of the aforesaid two cases

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1 AIR 1981 SC 1223

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2 (1999) 9 SCC 507

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to the evidence of PW 2, we have no hesitation to come to the conclusion that his statement indicating that the injured told him that his nephew has fired at him, would become admissible under Section 6 of the Evidence Act. We are, therefore, unable to accept the first submission of Ms Goswami, learned counsel appearing for the appellant.

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11 . The next question that arises for consideration is whether even if the statement becomes admissible, can the statement be held to be so reliable that a conviction under Section 307 can be based thereupon. PW 2 in the crossexamination candidly admitted that Sukhar, the present appellant and he are inimical to each other since long before. It was also elicited in the cross-examination of the said witness that by the time he reached the scene of occurrence, more than 20 persons had gathered next to Nakkal and yet none of them has been examined by the prosecution to corroborate PW 2 as to what was told to him by the injured. The witness also stated in the cross-examination that Nakkal was naming the accused as his assailant in front of all those people who had gathered but it is not understood as to why the prosecution has chosen not to examine any one of them but to examine only PW 2 who was admittedly inimically disposed towards the accused/appellant. In this view of the matter, the evidence of PW 2 cannot be held to be of such an unimpeachable character on whose testimony alone the conviction can be based without any corroboration. On the other hand, the witness being inimical to the accused and on account of what has been elicited in his cross-examination, his evidence requires corroboration before being accepted. Admittedly there is not an iota of corroboration either from any oral evidence or from any other circumstances. In this view of the matter, we have no hesitation to come to the conclusion that the conviction of the appellant on the unreliable and shaky evidence of PW 2 without any corroboration, cannot be sustained. We

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accordingly set aside the conviction and sentence of appellant and acquit him of the charges levelled against him. The accused who is in jail should be released forthwith. The appeal is allowed accordingly. ”

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Similarly, it is the case of the prosecution that Pannin Bai (PW-11) was an eye witness as per document Ex.D/1, statement of Panni Bai (PW-11), however, she did not support the case of the prosecution as eye witness and once there is an eye witness the fact remains that it is not within the special knowledge of accused person only. Now, the question is whether the trial court has rightly invoked Section 106 of the Evidence Act to convict the appellant in the case of eye witness?

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At this stage, it would be appropriate to quote Section 106 of the 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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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

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106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned.

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In the matter of Murlidhar and others v. State of Rajasthan 3 , their Lordships of the Supreme Court have held

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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 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 eye-witnesses to the fact of murder. The prosecution took upon itself the burden of examining Babulal (PW-5) as eyewitness. Testimony

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3 AIR 2005 SC 2345

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of Ram Ratan (PW-7) and Isro (PW-10) 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 opened. It is also unlikely that the accused-appellants 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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Recently, in the matter of Balvir Singh v. State of Uttarakhand 4 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

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4 2023 SCC OnLine SC 1261

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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 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 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 foundation of an issue does not

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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 “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

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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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In view 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 IEA, the trial Court is absolutely unjustified in invoking Section 106 of the IEA in the case of presence of eye witness (PW-11) to convict the appellant for the offence in question.

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Next piece of evidence, which has been found proved by the trial Court, is extra judicial confession which the appellant is said to have given to her son Santosh (PW-1), but Santosh (PW-1) has not supported the case of the prosecution and has completely declared hostile. However, he has stated that the appellant had informed him that his father fell down himself from the cot and suffered grievous injuries, as such, extra judicial confession which is said to be made by the appellant to Santosh (PW-1) is not supported by Santosh (PW-1) and, therefore, we hereby reject the finding recorded by the trial Court with regard to extra judicial confession.

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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 28.06.2018 passed by the trial Court convicting and sentencing the appellant for the offence under Section 302 of the 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 07.09.2017, we direct that she 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 she is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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

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Ankit

Jhumka Bai Kannauje v. State of Chhattisgarh

Case brief

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Jhumka Bai Kannauje v. State of Chhattisgarh

Case brief

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