Allowed

Sushila Mandavi v. State of Chhattisgarh

Chhattisgarh HC10 Jul 2024CRA/1377/2018

Case brief

AI extract

What is this about?

Criminal appeal against murder conviction. The Division Bench held that while the death was homicidal, the prosecution failed to prove the appellant was the sole occupant of the room where the crime occurred. Invoking Supreme Court precedents, the court ruled Section 106 of Evidence Act could not be invoked, leading to acquittal.

What did the court decide?

Appellant acquitted of charges for offences punishable under Sections 302 and 201 of IPC; conviction and sentence set aside; released from jail.

Sushila Mandavi Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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(Cr. A. No. 1377 of 2018)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRIMINAL APPEAL NO. 1377 OF 2018

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(Arising out of Judgment dated 23.8.2018 passed by Eighth Additional Sessions Judge, Raipur in Sessions Case No.152/2017)

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Sushila Mandavi, aged about 19 years, D/o Shri Suraj Lal Mandavi, R/o Village Bansgaovn, P.S. Kondagaovn, District Kondagaovn (C.G.)

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... Appellant(s)

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Versus

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State of Chhattisgarh, through: Station House Officer, Police Station Vidhan Shabha, Raipur, District Raipur (C.G.)

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... Respondent(s)

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For Appellant	:-	Mr. Jeet Patel, 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 Kumar Jaiswal

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Judgment on Board [11.07.2024]

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Sanjay K. Agrawal, J.

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1. The present criminal appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (in short, CrPC), has been preferred by the appellant Sushila Mandavi assailing the judgment dated 23.8.2018 passed by learned Eighth Additional Sessions Judge, Raipur (Trial Court) in Sessions Case No.152/2017, by which

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(Cr. A. No. 1377 of 2018)

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the appellant has been convicted for the offence punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (in short, IPC) and sentenced to undergo Life Imprisonment with fine of Rs.500/- and in default of payment of fine amount, to suffer additional One months’ Rigorous Imprisonment under Section 302 of IPC and to undergo Rigorous Imprisonment for One year with fine of Rs.200/- and in default of payment of fine amount, to suffer additional Rigorous Imprisonment for One month under Section 201 of IPC.

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2. In the instant case, there were total five accused persons, one is the appellant Sushila Mandavi who stands convicted by the Trial Court, as mentioned above, and other four co-accused persons are Virendra Kumar Kanwar, Nasik Kumbhre, Gulab Muleti and Tameshwar Netam who all have been acquitted by the Trial Court of the charges presented against them under Sections 302, 201 read with Section 149 of IPC for committing murder of Kamlesh Sahare (deceased) and concealing evidence of his murder falsely informing of his death being caused due to his illness.

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(Cr. A. No. 1377 of 2018)

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3. A brief factual backdrop of the prosecution case as unfolded during the trial is that the deceased Kamlesh Sahare and the accused appellant Sushila Mandavi including the above-mentioned four acquitted coaccused persons, they all were engaged in labour work in a factory called Sanjay Grain Product Pvt. Ltd., situated at Sankri under Police Station Vidhan Sabha, Raipur and they used to live in the rooms which were made behind the said factory for the purpose of stay of the labourers and it has also been alleged by the prosecution that there was a romantic relationship between the deceased and the appellant and they both used to live in room no.3 at the said factory. According to the prosecution case, on 3.3.2017 at about 10:00 pm, a dispute had arisen between the accused persons and the deceased on account of which, the accused persons, in furtherance of their common intention, caused death of deceased Kamlesh Sahare putting a coin in his mouth in order to choke him and strangulating his neck by neck-towel and thereafter in order to screen themselves from legal punishment they took his dead-body to his house at Village Navatola in

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(Cr. A. No. 1377 of 2018)

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the night itself on a false information of his death being caused due to his illness and thereafter they left.

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4. However, suspecting a foul play, PW-2 Lagnuram, elder brother of the deceased’s father, lodged Merg Intimation (Exhibit P-33) at Police Station Bortalab, Rajnandgaon on which wheels of investigation started running. During investigation, spot-map was prepared vide Exhibit P-34 and Inquest Panchnama was prepared vide Exhibit P-2 pursuant to which deadbody of deceased Kamlesh Sahare was subjected to post-mortem which was conducted by PW-15 Dr. Suchita Shrivastava vide Exhibit P-32 in which cause of his death was opined to be Asphyxia due to strangulation and his viscera were collected for forensic examination. On the basis of post-mortem report, a zero FIR was registered at Police Station Bortalab, Rajnandgaon vide Exhibit P-19. Subsequently, vide Exhibit P-14, a numbered FIR bearing Crime No.56/2017 was registered at Police Station Vidhan Shabha, Raipur under Section 302 of IPC against unknown accused persons. Spot-map was prepared vide Exhibit P-20. Statement of the

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(Cr. A. No. 1377 of 2018)

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concerned witnesses was recorded. Memorandum statement of the appellant was recorded vide Exhibit P-9 pursuant to which, seizure of a neck-towel and a coin was made vide Exhibit P-10. Thereafter, vide Exhibit P-3, a Test Identification Parade (TIP) was conducted in which PW-1 Kaleshwar Sahare, elder brother of the deceased, identified the accused persons and thereafter they were arrested. Nazri Naksha got prepared by the concerned Patwari vide Exhibit P-7. Further, vide Exhibit P-19A, Dr. Suchita Shrivastava replied to the query sought for by the Police Station, Vidhan Shabha, opining that death can be caused by the seized neck-towel and the nature of death was opined to be homicidal and further she advised for the forensic examination of saliva found on the seized neck-towel and coin. However, as per Forensic Science Laboratory (FSL) report (Exhibit P-35), saliva found on the seized neck-towel (Article ‘A’) and coin (Article ‘B’) was not found sufficient to be examined by the serologist and no further examination was done.

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(Cr. A. No. 1377 of 2018)

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5. On completion of the investigation, all the accused persons including the appellant herein were chargesheeted before the concerned Magistrate who took cognizance on the charge-sheet and the case, being exclusively triable by the Sessions Court, was committed to the court of Sessions for trial. They appeared before the Trial Court where charges were framed against them under Sections 302, 201 read with Section 149 of IPC to which they denied and claimed to be tried.

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6. During the course of trial, in order to prove its case, the prosecution examined as many as 16 witnesses as PW-1 to PW-16 and exhibited 36 documents vide Exhibits P-1 to P-36. After closure of the prosecution evidence, statement of the accused persons was recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence of the prosecution, pleaded innocence and false implication. However, in defence, neither any witness has been examined nor any document has been relied on by the accused persons.

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(Cr. A. No. 1377 of 2018)

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7. After conclusion of trial, the Trial Court, by impugned judgment dated 23.8.2018, on appreciation of oral and documentary evidence came on record, while acquitting the aforementioned four accused persons of the charges presented against them, only held the appellant herein guilty of the offence punishable under Sections 302 and 201 of IPC and accordingly convicted and sentenced her as mentioned in paragraph-1 of this judgment, which led to filing of the present appeal by the appellant Sushila Mandavi calling in question the legality, validity and correctness of the impugned judgment passed by the Trial Court.

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8. Mr. Jeet Patel, learned counsel appearing for the appellant, would submit that Section 106 of the Indian Evidence Act, 1872 (in short, the Evidence Act) has wrongly been invoked by the Trial Court in convicting the appellant for the offence punishable under Sections 302 and 201 of IPC which is not applicable in the instant case at all for the reason that there were other persons also present in room no.3 where the incident had occurred as per the statement of PW-3 Brijesh Singh and as such there is no incriminating

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(Cr. A. No. 1377 of 2018)

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piece of evidence against the appellant for the alleged offences which the prosecution has been able to prove. Hence, the appellant is entitled to be acquitted of the said charges on the basis of benefit of doubt and the appeal deserves to be allowed accordingly.

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9. Mr. Vivek Mishra, learned Panel Lawyer appearing for the State, would support the impugned judgment and submit that the prosecution has been able to prove the offence against the appellant beyond reasonable doubt and therefore the Trial Court is absolutely justified in convicting her for the offence punishable under Sections 302 and 201 of IPC, invoking Section 106 of the Evidence Act to base her conviction as she has failed to explain in her statement recorded under Section 313 of CrPC as to how and under what circumstances the deceased died in the room in question. The appellant as such does not deserve for acquittal even on the basis of benefit of doubt and her appeal is liable to be dismissed.

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10. We have heard learned counsel for parties, considered their rival submissions made herein-above and also perused the record carefully and thoroughly.

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(Cr. A. No. 1377 of 2018)

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11. The first and foremost question, as to whether the death of deceased Kamlesh Sahare was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of PW-15 Dr. Suchita Shrivastava who has conducted the postmortem examination of the deceased and also proved the post-mortem report (Exhibit P-32) in which cause of death of the deceased has been opined to be asphyxia due to strangulation and, as per Exhibit P-19A, the nature of death his death has been opined to be homicidal, which, in our considered opinion, is correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. We, accordingly, affirm the said finding of the Trial Court, holding that the death of deceased Kamlesh Sahare was homicidal in nature.

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12. Now, the question is, as to whether the appellant is author of the crime in question?

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13. Case of the prosecution is not based on direct evidence rather it is based on the circumstantial evidence. The Trial Court, while acquitting the above-mentioned four accused persons, invoked Section 106 of the Evidence

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(Cr. A. No. 1377 of 2018)

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Act in convicting the appellant herein holding that though the appellant and the deceased were not married but they were living together in room no.3 at the said factory and the dead-body of the deceased was found in that room no.3 and thereafter the deadbody of the deceased was taken to his village Navatola by the appellant on a false information of his death being caused due to his illness and the appellant has failed to explain in her statement recorded under Section 313 of CrPC as to how and under what circumstances the deceased died in room no.3.

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14. Now, we will consider as to whether the Trial Court has rightly invoked Section 106 of the Evidence Act to convict the appellant and for which the prosecution has been able to discharge its primary burden of proving its case beyond reasonable doubt?

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15. It would be appropriate herein 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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(Cr. A. No. 1377 of 2018)

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16. 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 Evidence Act, the main point to be established by the 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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17. In the matter of Balvir Singh v. State of Uttarakand 1, 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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1 2023 SCC OnLine SC 1261

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(Cr. A. No. 1377 of 2018)

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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 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

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(Cr. A. No. 1377 of 2018)

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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

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(Cr. A. No. 1377 of 2018)

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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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(Cr. A. No. 1377 of 2018)

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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 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,

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(Cr. A. No. 1377 of 2018)

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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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(Cr. A. No. 1377 of 2018)

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18. Similarly, in the matter of Anees v. The State Govt.

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of NCT 2, their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the Evidence Act, have held in paragraphs 47 to 55 as under:-

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“ 47. But Section 106 of the Evidence Act 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 to the accused but also to others, if they happened to be present when it took place. The intention underlying the act or conduct of any individual is seldom a matter which can be conclusively established; it is indeed only known to the person in whose mind the intention is conceived. Therefore, if the prosecution has established that the character and circumstance of an act suggest that it was done with a particular intention, then under illustration (a) to this section, it may be assumed that he had that intention, unless he proves the contrary.

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48. 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

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2 2024 SCC Online SC 757

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(Cr. A. No. 1377 of 2018)

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if believed by the court, would convince them of the accused's guilt beyond a reasonable doubt, the accused, if in a position, should go forward with countervailing 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 arise therefrom. 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 [See: Balvir Singh v. State of Uttarakhand , 2023 SCC OnLine 1261]

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ii. What is “ prima facie case ” (foundational facts) in the context of Section 106 of the Evidence Act ?

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49. 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 “evidence sufficient in law to raise a

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(Cr. A. No. 1377 of 2018)

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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 case or charges against the defendant. If they cannot present prima facie evidence, the initial claim may be dismissed without any need for a response by other parties.

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50. 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 guilt of the accused.

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51. The presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved.

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52. To explain what constitutes a prima facie case to make Section 106 of the Evidence Act applicable, we should refer to the decision of this Court in State of W.B. v. Mir Mohammad and ors. (2000) 8 SCC 382 , wherein this Court has observed in paras 36 and 37 respectively as under:

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“ 36. In this context we may profitably utilize the legal principle embodied in Section 106 of the Evidence Act which reads as follows: “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

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(Cr. A. No. 1377 of 2018)

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37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.”

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(Emphasis supplied) 53. We should also look into the decision of this Court in the case of Ram Gulam Chaudhary & Ors. v. State of Bihar , (2001) 8 SCC 311, wherein this Court made the following observations in paragraph 24 as under:

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“24. Even otherwise, in our view, this is a case where Section 106 of the Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and then a chhura-blow was given on the chest. Thus chhura-blow was given after Bijoy Chaudhary had said “he is still alive and should be killed”. The appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the appellants. The appellants have given no explanation as to what they did after they took away the body. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the

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(Cr. A. No. 1377 of 2018)

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fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the court, there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. We, therefore, see no substance in this submission of Mr. Mishra. ”

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(Emphasis supplied)

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54. Cases are frequently coming before the courts where the husband, due to strained marital relations and doubt as regards the character, has gone to the extent of killing his wife. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, like in the case at hand, even if he is a witness of the crime, would come forward to depose against another family member.

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(Cr. A. No. 1377 of 2018)

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55. If an offence takes place inside the four walls of a house and in such circumstances where the accused has all the opportunity to plan and commit the offence at a time and in the circumstances of his choice, it will be extremely difficult for the prosecution to lead direct evidence to establish the guilt of the accused. It is to resolve such a situation that Section 106 of the Evidence Act exists in the statute book. In the case of Trimukh Maroti Kirkan (supra), this Court observed that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. The Court proceeded to observe that a Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character, which is almost impossible to be led, or at any rate, extremely difficult to be led. The duty on the prosecution is to lead such evidence, which it is capable of leading, having regard to the facts and circumstances of the case. ”

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19. Returning to the facts of the present case, in light of

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the principles of law laid down by their Lordships of the Supreme Court in the above referred decisions, it is quite clear that the appellant has been convicted by virtue of Section 106 of the Evidence Act holding that the appellant and the deceased used to live as husband and wife in room no.3 of Sanjay Grain Product factory premises as per the statement of PW-3

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(Cr. A. No. 1377 of 2018)

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Brijesh Singh who was Manager of the said factory. However, PW-3 Brijesh Singh, in paragraph-9 of his cross-examination, has clearly stated that there were total 35 rooms in the said factory for stay of the labourers and in each room at-least 8 labourers used to live. Similarly, PW-6 Anant Singh, who was Supervisor in the said factory, has stated that when he visited room no.3, he found 8-10 persons already present there including Virendra and Tameshwar, the two acquitted co-accused persons. In her statement recorded under Section 313 of CrPC, in reply to Q.No.33 put to her as to whether she along with the other accused persons was present outside the room where the deceased was found unconscious, the appellant has categorically replied to this query in affirmative. Hence, it is established that immediately after the incident, the appellant was found outside the room in question along with the other co-accused persons who have been acquitted by the Trial Court by the impugned judgment itself. Thus, from the evidence which have come on record, it is also clearly established that the acquitted co-accused persons

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(Cr. A. No. 1377 of 2018)

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were also present in the room in question. Though it is a case of the prosecution that the appellant and the deceased both used to live together in room no.3 of the said factory, but according to the testimony of PW-3 Brijesh Singh itself there were at-least 8 labourers used to live in each room of the said factory. Even though in her statement recorded under Section 313 of CrPC, in response to Q.No.31, the appellant has admitted that she used to live along with the deceased in room no.3, but there was no question put to her as to whether on the date and time of offence only the appellant and the deceased both were present in the said room and even otherwise there is no evidence came on record to that extent. Rather, it has come on record that immediately after the incident when PW-6 Anant Singh had visited room no.3, all the acquitted co-accused persons including the appellant herein were present outside the said room, which is found established. In that view of the matter, the prosecution has not been able to establish beyond reasonable doubt that on the date and time of the offence, it is the appellant and the deceased who were the only inmates

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(Cr. A. No. 1377 of 2018)

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in room no.3 of the said factory, obliging the appellant to explain in her 313 CrPC statement as to how and under what circumstances the deceased died in the said room, particularly when the appellant was not legally wedded with the deceased. Apart from this, the prosecution has not been able to establish its case on the basis of forensic evidence also that as to whose saliva it was which was found on the neck-towel and coin recovered pursuant to the memorandum statement of the appellant. Similarly, as regards the other incriminating circumstance that the dead-body of the deceased was taken to his house on a false information of his death being caused due to his illness, from the evidence which have come on record it is already established that it is not the appellant alone but other acquitted co-accused persons also who were found present in the place of incident on the date and time of the offence as well as while taking the dead-body of the deceased to his house at village Navatola.

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20. Accordingly and in view of the aforesaid discussion and analysis of the evidence available on record and in

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(Cr. A. No. 1377 of 2018)

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light of the legal position propounded by the Supreme Court in the above-referred decisions, though the prosecution has been able to establish the nature of death of the deceased to be homicidal, but it is quite established that the prosecution has failed to prove that on the date and time of offence it is the appellant who was the only inmate present in the room where the incident had occurred. The appellant as such is entitled for acquittal on the basis of principle of ‘benefit of doubt’ as the prosecution has miserably failed to discharge its primary burden of proving the offence for which the appellant has been charged so as to attract Section 106 of the Evidence Act.

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21. Resultantly, this criminal appeal is allowed . The conviction and sentence of the appellant for the offence punishable under Sections 302 and 201 of IPC is hereby set-aside and she is acquitted of the said charges extending her the benefit of doubt. She is reported to be in jail. She be released from jail forthwith, if her detention is not required in connection with any other offence.

¶132

Page 27 of 27

¶133

(Cr. A. No. 1377 of 2018)

¶134

22. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail be also supplied with a certified copy of this judgment for

¶135

information and compliance, if any, at the earliest.

¶136

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

¶137

sharad

Sushila Mandavi v. State of Chhattisgarh

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Sushila Mandavi v. State of Chhattisgarh

Case brief

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