Allowed

Madhav Bareth v. State Of Chhattisgarh

Chhattisgarh HC4 Feb 2024CRA/126/2017

Case brief

AI extract

What is this about?

High Court allowed criminal appeal against life imprisonment for murder. Court held circumstantial evidence insufficient as prosecution failed to establish complete chain under Sharad Birdhi Chand Sarda principles and misapplied Section 106 Evidence Act. Accused acquitted and released.

What did the court decide?

Accused acquitted of charges under Sections 302 & 201 IPC; conviction and sentence set aside; directed to be released from jail forthwith.

Madhav Bareth Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

¶1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

Criminal Appeal No.126 of 2017

¶5

(Arising out of judgment dated 07.12.2016 passed in Sessions Trial No.21 of 2015 by the learned Additional Sessions Judge Sarangarh, District Raigarh, C.G.)

¶6

Madhav Bareth son of Mahesh Bareth, aged about 28 years, R/o Village Lodhiya, P.S. Baramkela, District Raigarh (C.G.).

¶7

---- Appellant

¶8

Versus

¶9

State of Chhattisgarh, through the Police Station, Baramkela, District Raigarh (C.G.).

¶10

---- Respondent

¶11

For Appellant : Mr. Adhiraj Surana, Advocate and Mr. Shikhar Sharma, Advocate For Respondent/State : Mr. Arvind Dubey, Govt. Advocate

¶12

Division Bench

¶13

Hon’ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

¶14

Judgment on Board ( 05. 02.2024)

¶15

Sanjay K. Agrawal, J.

¶16

1. This criminal appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) has been preferred by the appellant-accused herein against the impugned judgment dated 07.12.2016 passed by the Additional Sessions Judge, Sarangarh, District Raigarh, Chhattisgarh in Sessions Trial No.21 of 2015, by which the appellant has been convicted for offence punishable under Sections 302 & 201 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/-, in default of

¶17

¶18

payment of fine amount, 1 year additional rigorous imprisonment and to undergo rigorous imprisonment for 3 years and to pay fine of Rs.500/-, in default of payment of fine amount, 4 months additional rigorous imprisonment, respectively.

¶19

2. The case of the prosecution, in short, is that on 01.06.2015, in the night at Village Lodhiya within the ambit of Police Station Baramkela, District Raigarh, the appellant herein intentionally murdered his wife, Anandmati (hereinafter referred to as “deceased”) by throttling with pillow and, on the same day, to save himself from legal punishment, he poured kerosene oil upon her and set her ablaze and destroyed the evidence and, thereby, the appellant is said to have committed offence under Sections 302 & 201 of IPC.

¶20

3. Further, case of the prosecution is that, on 02.06.2015, Dhanesh Bareth (PW-10), resident of Village Lodhiya within the ambit of Police Station Baramkela along with Kotwar Jairam Bareth and Village Sarpanch Sodhia, went to Police Station Baramkela intimating that on 01.06.2015, after having dinner, he was sleeping in his room, at that relevant time, her mother shouted “ जल गई जल गई”, then he got up with his wife Kaushilya Bai and went to appellant's house, where he saw that Anandmati was burning and Madhav was present in the house. Thereafter, Nadu Bareth came and tried to extinguish the fire, but Anandmati (deceased) was not making any kind of struggle or sound due to burning in the fire and

¶21

¶22

she had already died. On the basis of above information, merg intimation No.11 of 2015 under Section 174 of IPC was registered vide Ex.P/11. Thereafter, wheels of investigation started running in the matter, in which, summons under Section 175 of Cr.P.C. were sent vide Ex.P/3 and inquest proceedings were conducted vide Ex.P/4. Spot map was also prepared vide Ex.P/6 and panchnama was made vide Ex.P/7 and First Information Report was recorded vide Ex.P/16. The dead body of deceased was sent for postmortem examination and in the postmortem report (Ex.P/14), conducted by Dr. Sanjay Patel (PW-12), cause of death of deceased was opined to be asphyxia and nature of death to be homicidal. Thereafter, appellant was arrested vide Ex.P/17. Memorandum statement of the appellant was recorded vide Ex.P/1 and, pursuant to which, a pillow was seized vide Ex.P/2. The said pillow was sent for chemical examination vide Ex.P/18, but no FSL report has been brought on record for the reasons best known to the prosecution.

¶23

4. After completion of the investigation, the appellant was chargesheeted for the offence punishable under Sections 302 & 201 of IPC before the concerned jurisdictional Criminal Court and thereafter, the case was committed to the Court of Additional Sessions Judge, Sarangarh, District Raigarh, Chhattisgarh for hearing and trial in accordance with law, in which the appellant abjured his guilt, took a plea of false implication and entered for trial.

¶24

¶25

5. During the course of trial, in order to bring home the offence, prosecution has examined as many as 13 witnesses as PW-1 to PW-13 and exhibited 21 documents from Exhibits P/1 to P/21. In defence, 4 witnesses have been examined as DW-1 to DW-4, but no document has been exhibited. Statement of the accused/appellant was recorded under Section 313 of Cr.P.C. in which he denied the incriminating circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.

¶26

6. After conclusion of the trial, the learned trial Court, by impugned judgment dated 07.12.2016, on appreciation of the oral and documentary evidence available on record, has convicted and sentenced the appellant as mentioned herein-above, against which this appeal has been preferred by the appellant calling in question the legality, validity and correctness of the impugned judgment.

¶27

7. Mr. Adhiraj Surana, learned counsel for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Sections 302 & 201 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that in the present case, there is no direct evidence available on record against the appellant and the case of the prosecution is based on circumstantial evidence. Merely on the basis of surmises and conjunctures, the appellant has been convicted. It has been contended that it is not clear that it is the appellant who has committed the offence. Merely on the

¶28

¶29

basis of provision contained in Section 106 of the Indian Evidence Act, 1872 (hereinafter referred to as “Evidence Act”), the appellant having not explained his position, cannot be convicted with the aid of Section 106, as the appellant was residing with his wife. It has been further contended that there is no other evidence to connect the appellant with the offence in question, therefore, he deserves to be acquitted.

¶30

8. Per contra, Mr. Arvind Dubey, 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, in which, there is no reason to have any kind of doubt. He further submits that it is a case of house murder and no acceptable explanation has been offered by the appellant in his statement recorded under Section 313 of Cr.P.C. He also submits that the learned trial Court has rightly convicted the appellant for offence under Sections 302 & 201 of IPC, thus, the present appeal deserves to be dismissed.

¶31

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

¶32

10. The first and foremost question is as to whether the death of the deceased Anandmati was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/14), wherein cause of death of

¶33

¶34

deceased was opined to be asphyxia and nature of death to be homicidal, which is duly proved by the statement of Dr. Sanjay Patel (PW-12). Accordingly, taking into consideration the postmortem report (Ex.P/14) and the statement of Dr. Sanjay Patel (PW-12), who has conducted the postmortem of the dead-body of the deceased, 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.

¶35

11. Now, the next question would be whether the appellant herein is the author of the crime in question for which the learned trial Court has relied upon following incriminating circumstances as culled out in Para-30 of the impugned judgment:

¶36

(i) That pursuant to the memorandum statement of the appellant (Ex.P/01), one pillow was seized vide Ex.P/02;

¶37

(ii) That the appellant was having motive to commit murder of the deceased, as he used to harass/torture her mentally and physically;

¶38

(iii) That the appellant failed to explain in his statement recorded under Section 313 of CrPC as to how and in what manner his wife (deceased) suffered injuries and died and, thus, invoked Section 106 of the Evidence Act.

¶39

12. Since, in the present case there is no direct evidence available on record agonist the appellant and case of the prosecution is based above-stated circumstantial evidence, therefore, it is profitable here to note following five golden principles laid down by their Lordships

¶40

¶41

of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra1 which constitute the ‘ panchsheel ’ of proof of a case based on circumstantial evidence and same reads as under :-

¶42

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

¶43

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:

¶44

"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."

¶45

(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.

¶46

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

¶47

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

¶48

(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.”

¶49

13. We shall now consider each of the above-stated incriminating

¶50

circumstances one by one.

¶51

As regards incriminating circumstance No.01:

¶52

14. True it is that in the instant case, pursuant to the memorandum

¶53

1 (1984) 4 SCC 116

¶54

¶55

statement of the appellant recorded vide Ex.P/01, pillow has been seized vide Ex.P/02, but there is no evidence available on record to show that the pillow seized was having stains of saliva and/or human blood. As such, recovery of pillow is of no use to the prosecution and cannot be held to be an incriminating circumstance.

¶56

As regards incriminating circumstance No.02:

¶57

15. In the present case, the learned trial Court has invoked Section 106 of the Evidence Act to convict the appellant on the basis that the appellant failed to explain in his statement recorded under Section 313 of CrPC that as to how and in what manner his wife (deceased) suffered injuries and died, as he and his wife were staying together in their house on the date and time of the offence.

¶58

16. At this stage, it would be appropriate to note Section 106 of the Evidence Act states as under : -

¶59

“ 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.”

¶60

17. 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

¶61

¶62

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.

¶63

18. In the matter of Shambhu Nath Mehra v. The State of Ajmer2 , 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 : -

¶64

“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

¶65

2 AIR 1956 SC 404

¶66

¶67

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).”

¶68

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.

¶69

19. 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 Bihar3 , in which it has been held by their Lordships of the Supreme Court as under : -

¶70

“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.

¶71

“23. 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

¶72

3 (2021) 10 SCC 725

¶73

¶74

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.”

¶75

20. Similarly, the Supreme Court in the matter of Gurcharan Singh v.

¶76

State of Punjab4 , while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him.

¶77

21. 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

¶78

4 AIR 1956 SC 460

¶79

¶80

Bihar5 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.

¶81

22. Returning to the facts of the case, in light of the principles of law laid down in above-stated judgments, it is quite vivid that though from the statements of Anandram Bareth (PW-2), Munu Babu (PW-3), Smt. Mohini Bareth (PW-5) and Dhanesh Bareth (PW-10) as well as from the statements of Sukmati (DW-1) and Kaushilya (DW-2), it is apparent that the wife of the appellant died in his bedroom, but the fact remains that in the courtyard of the same house, Sukmati (DW-1) was also sleeping on the date and time of the offence. Furthermore, the incriminating circumstance that the appellant and his wife were in the house of the appellant on the date and time of the offence and on the next day she was found dead in the house of the appellant, has not been put to the accused/appellant under Section 313 of CrPC and, therefore, the said incriminating circumstance cannot be taken into consideration to base conviction of the appellant for the offence in question. As such, the trial Court is absolutely unjustified in convicting the appellant by virtue of Section 106 of the Evidence Act.

¶82

As regards incriminating circumstance No.03:

¶83

23. The last incriminating circumstance which the trial Court has found proved is the motive on the part of the appellant to commit the offence, as he used to torture and beat his wife (deceased).

¶84

5 AIR 1974 SC 778

¶85

¶86

However, even if it is accepted that the appellant had motive to commit murder of the deceased, then also it is well settled law that motive may be an incriminating circumstance in a case based on circumstantial evidence, but it cannot take place of conclusive proof. (See: Sampath Kumar vs. Inspector of Police, Krishnagiri6 ). Further, in a recent decision rendered in the matter of Mahendra Singh vs. State of M.P.7 their Lordships of the Supreme Court reiterated the law on the point stating that merely because motive is established, solely on that basis accused cannot be convicted that too for an offence under Section 302 of IPC. We hereby hold accordingly.

¶87

24. In view of the aforesaid discussions, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence, as laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra) on the basis of incriminating circumstances as culled out in Para-30 of the impugned judgment, in absence of which, the appellant is entitled to get benefit of doubt. As such, the learned trial Court is unjustified in convicting the appellant for offences under Sections 302 & 201 of IPC.

¶88

25. Accordingly, the appellant is entitled for acquittal on the basis of principles of benefit of doubt and, therefore, the conviction and sentence of the appellant for offence punishable under Sections

¶89

7 (2022) 7 SCC 157

¶90

6 (2012) 4 SCC 124

¶91

¶92

302 & 201 of IPC imposed upon him by the learned trial Court is hereby set aside. He is acquitted of the said charges. The appellant is reported to be in jail since 19.06.2015, we direct that he be released from jail forthwith, if not required in any other matter/case.

¶93

26. This criminal appeal is allowed .

¶94

27. Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any.

¶95

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

¶96

Yogesh/s@if

Madhav Bareth v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Madhav Bareth v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Avon @ Avont Kumar Chouhan Vs State Of Chhattisgarh

Baliram Gadriya Vs State Of Chhattisgarh

Smt. Kishwer Begum Vs State of Chhattisgarh

Tariq Anwer Vs State Of Chhattisgarh

State of Chhattisgarh Vs Shurdarshan Yadav and Ors.

Premlal Thakur Vs State Of Chhattisgarh