Lambodar Sahu Vs State of Chhattisgarh

For Appellant : Mr. A.L.Singhroul, Panel Lawyer appointed by C.G. High Court Legal Aid Committee. For Respondent : Mr. Santosh Kumar Dewangan, 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 (19.06.2024)

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Sanjay K. Agrawal, J.

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1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 29.08.2018, passed by the learned

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Second Additional Sessions Judge, Balouda Bazar, in Sessions Trial No.11/2018, by which, the appellant herein has been convicted for the offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.1000/-, in default of payment of fine, 2 months additional imprisonment.

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2. Case of the prosecution, in brief, is that on 28.10.2017 at about 6:00 a.m. at village Gopalpur, Police Station Sarsiwa, District Balouda Bazar- Bhathapara, appellant herein assaulted Lakeshwari Sahu (now deceased) with whom he was living otherwise than marriage by a sharp edged weapon Katta, by which, she suffered grievous injuries and died. The matter was reported to the police by brother of deceased Sudesh Kumar Sahu (PW-1), pursuant to which, Merg Intimation was registered vide Ex.P-1, FIR was registered vide Ex.P-2, Inquest was conducted vide Ex.P-4 and dead body of deceased Lakeshwari Sahu was subjected to post-mortem, which was conducted by Dr. Pushpendra Kumar Vaishnav (PW11), who proved the post-mortem report Ex.P-13, in which, cause of death was stated to be cardio vascular arrest due to grievous injury in the neck and death was homicidal in nature. The weapon of offence i.e. Katta was recovered from the spot, which was sent for chemical

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examination to FSL along-with other seized articles and as per the FSL report dated 11.01.2018, human blood was found on the Katta. After due investigation, appellant was charge-sheeted for the aforesaid offence under Section 302 of I.P.C. before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

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3. In order to bring home the offence, prosecution examined as many as 14 witnesses and exhibited 17 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

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4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of Indian Penal Code and sentenced him to undergo life imprisonment against which the present appeal has been preferred.

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5. Mr. A.L.Singhroul, learned counsel for the appellant would submit that there is no admissible evidence either direct or circumstantial to convict the appellant for the

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offence under Section 302 of I.P.C. and Section 106 of the Indian Evidence Act has wrongly been applied; therefore, the appellant is entitled for acquittal and the appeal deserves to be allowed.

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6. Mr. Santosh Kumar Dewangan, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant herein for offence punishable under Section 302 of I.P.C. and therefore, the appeal deserves to be dismissed.

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

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8. The first question for consideration as to whether the death of deceased Lakeshwari Sahu was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-13) proved by Dr. Pushpendra Kumar Vaishnav (PW-11), according to which, cause of death was stated to be cardio vascular arrest due to grievous injury in the neck and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on

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evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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9. Now, the next question is, whether the appellant has caused the death of deceased Lakeshwari Sahu ?

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10. The first piece of evidence, which the trial court has relied upon, is that the appellant had given extra-judicial confession to the police and he has admitted the guilt ignoring the fact that such statement made before the police is inadmissible in evidence in light of Section 25 & 26 of the Indian Evidence Act. In that view of the matter, the confession made by the appellant before the police and accepted by the trial Court in para 17 of the judgment is inadmissible in evidence in view of Section 25 & 26 of the Indian Evidence Act.

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11. The next circumstance, which the trial Court has relied upon, is that the appellant has failed to prove that on the date of offence, he was not with the deceased and her dead body was found in the house of the appellant, therefore, he has been held guilty for the offence of murder and Section 106 of the Indian Evidence Act has been applied. It is pertinent to mention here that as per the statement of Sudesh Kumar Sahu (PW-1), brother of

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deceased, the legally wedded wife of the appellant is Sukmati, but the appellant was allegedly residing with his sister Lakeshwari (deceased). Since the deceased was not legally wedded wife of the appellant, the prosecution was required to establish that on the date and time of offence, appellant & deceased both were in the house and thereafter, in the morning, the dead body of deceased was recovered to invoke Section 106 of the Indian Evidence Act. But, as per the statement of Sudesh Kumar Sahu (PW-1) and other prosecution witnesses, it could not be established that appellant and deceased both were seen in the house of the appellant and as per the merg intimation also appellant was not present in the house when police visited his house and even otherwise, Section 106 of the Indian Evidence Act is not intended to relieve prosecution of its burden to prove its case beyond reasonable doubt.

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12. In the matter of Anees v. The State Govt. of NCT1 , their

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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

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2024 INSC 368 [Criminal Appeal No.437 of 2015, decided on 30.05.2024]

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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 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 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 arise therefrom. Although not legally required to produce evidence on his own behalf, the

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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 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

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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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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)

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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

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did after they took away the body. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the 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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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

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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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As such, in view of Anees (supra), the trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of I.P.C. by applying Section 106 of the Indian Evidence Act.

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13. The next piece of circumstance is that the weapon of offence i.e. Katta was recovered from the spot vide Ex.P-9 on 28.10.2017, which was sent for chemical examination to FSL after two months on 26.12.2017 and there is no evidence on record that it was placed in safe custody from 28.10.2017 to 26.12.2017 as chances of tempering and manipulation with the seized articles cannot be ruled out. Furthermore, Katta was not recovered pursuant to memorandum statement of the appellant and it was

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recovered from the spot and in view of the decision of the Supreme Court in the matter of Boby v. State of Kerala 2 since the weapon of offence i.e. Katta was not recovered pursuant to memorandum statement of the appellant, it is of no use of the prosecution.

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14. 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 29.08.2018 passed by the trial Court convicting and sentencing the appellant for the offence under Section 302 of the IPC is hereby set aside and the appellant is acquitted from the said offence on the ground of benefit of doubt. Appellant is stated to be in jail since 29.10.2017, we direct that he be released from the jail forthwith, if not required in any other matter.

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

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16. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information and action, if any. A

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2023 LiveLaw (SC) 50

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copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the

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jail sentence.

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

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Ashok

Lambodar Sahu v. State of Chhattisgarh

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Lambodar Sahu v. State of Chhattisgarh

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