Allowed

Bheem Kumar and Another v. State Of Chhattisgarh

Chhattisgarh HC6 Feb 2024CRA/149/2017

Case brief

AI extract

What is this about?

This Division Bench of the Chhattisgarh High Court allowed three criminal appeals against conviction and sentence for murder. The court held that the prosecution failed to prove beyond reasonable doubt that the appellants conspired to murder the deceased, rejecting reliance on Section 106 of the Evidence Act, fingerprint reports without substantive corroboration, and recovery of blood-stained item

What did the court decide?

Conviction and sentence set aside; all four appellants acquitted on benefit of doubt and released forthwith if not required in other matters.

Bheem Kumar and Another Vs State Of… — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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Page 1 of 40

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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[Arising out of judgment dated 10.01.2017, passed in Sessions Trial No.28 of 2013 (State of Chhattisgarh v. Rooma Majumdar and 03 others), by the Court of Additional Sessions Judge (FTC), Baikunthpur, District Koriya (C.G.)]

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Criminal Appeal No. 1576 of 20 17

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Rooma Majumdar, Widow of Tapas @ Sukriyo Majumdar, aged about 36 years, Resident of Staff Quarter, Koriya Colliery, Police Station Chirmiri, District Koriya (Chhattisgarh)

---- Appellant

(In Jail)

Versus

State of Chhattisgarh, through Station House Officer, Police Station Chirmiri, District Koriya (Chhattisgarh)

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---- Respondent

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---------------------------------------------------------------------------------------- For Appellant : Mr. Sudhir Kumar Bajpai, Advocate For Respondent : Mr. Rahul Tamaskar, Govt. Adv. ----------------------------------------------------------------------------------------

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WITH

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Criminal Appeal No. 674 of 20 17

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Dulal Chakravarty, Son of Deepak Chakravarty, aged about 22 years, Resident of Ajirma Mahavirpur, Police Station Jainagar, District Surajpur (Chhattisgarh)

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---- Appellant (In jail)

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Versus

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State of Chhattisgarh, through Station House Officer, Police Station Chirmiri, District Koriya [wrongly mentioned as District Surajpur in the memo of appeal] (Chhattisgarh)

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---- Respondent

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------------------------- For Appellants	-------- :	------------------------------------------------------- Mr. Gajendra Sahu, Advocate on
		behalf of Mr. Ashok Verma, Advocate/
		Panel Lawyer appointed through C.G.
		High Court Legal Services Committee.
For Respondent	:	Mr. Rahul Tamaskar, Govt. Adv.

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Page 2 of 40

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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WITH

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Criminal Appeal No. 149 of 20 17

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Bheem Kumar, Son of Shivprasad Pando, aged about 20 years, Resident of Village Mahavirpur Ajirma, Police Station Jainagar, District Surajpur (Chhattisgarh)

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Motilal, Son of Shri Prahlad, aged about 20 years, Resident of Brahman Para, Ajirma, Police Station Jainagar, District Surajpur (Chhattisgarh)

---- Appellants

(In jail)

Versus

State of Chhattisgarh, through District Magistrate, District Koriya (Chhattisgarh)

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---- Respondent

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For Appellants : Mr. Maneesh Sharma, Advocate. For Respondent : Mr. Rahul Tamaskar, Govt. Adv.

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Division Bench

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

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Judgment on Board (07.02.2024)

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Sanjay K. Agrawal, J

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(1) Regard being had to the similitude of the questions of fact and law involved and being arising out of a common impugned judgment dated 10.01.2017, on the joint request of learned counsel for the parties, these three criminal appeals are clubbed together, heard together and are decided by this common judgment.

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(2) In these three criminal appeals, four accused-appellants herein, namely, Rooma Majumdar (A-1) , Dulal Chakravarty (A-

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Page 3 of 40

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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2) , Bheem Kumar (A-3) and Motilal (A-4) have invoked criminal

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appellate jurisdiction of this Court under Section 374(2) of Cr.P.C. by calling in question the legality, validity and correctness of common impugned judgment of conviction and order of sentence dated 10.01.2017, passed by the Additional Sessions Judge (FTC), Baikunthpur, District Koriya (CG) in Sessions Case No.28 of 2013, whereby they all have been convicted and sentenced as under:

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Conviction	Sentence
U/s 302 of IPC	Imprisonment for life with fine of Rs.500/- each and, in default of payment of fine, additional rigorous imprisonment for 06 months each.
U/s 120-B of IPC	Imprisonment for life with fine of Rs.500/- each and, in default of payment of fine, additional rigorous imprisonment for 06 months each.
U/s 201 of IPC	R.I. for 07 years with fine of Rs.500/- each and, in default of payment of fine, additional rigorous imprisonment for 06 months each.

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[All the sentences are directed to run concurrently]

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(3) The case of the prosecution, in brief, is that in the intervening night of 22-23.11.2012, at Staff Quarter No.1B/57, Koriya Colliery within the ambit of Police Station Chirmiri, Koriya, all the accused-appellants herein firstly conspired with each other and shared common intention to commit murder of Supriyo Majumdar @ Tapas (hereinafter referred to as the “deceased”) and, in furtherance thereof, caused his death and,

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Page 4 of 40

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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thereby, the appellants are said to have committed offences under Sections 302/34, 201 & 120-B of IPC.

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(4) The further case of the prosecution is that complainant, namely, Arun Kumar Benerjee (PW-02), who is neighbour of the deceased, lodged report at Police Chowki Koriya, Police Station Chrimiri to the effect that on the date and time of the offence, the deceased, who was Mechanic Fitter, used to reside alongwith his family at Staff Quarter No.1B/57, Koriya Colliery (hereinafter referred to as “the place of incident”). In the morning, at about 06:30 AM, Mohan (not examined), who was sweeper in the house of the deceased, informed him that somebody has committed murder of the deceased, thereafter, he went to the place of incident and saw that the dead-body of the deceased was lying on the floor in bloodied condition. Daughter of the deceased, namely, Ku. Tulika Majumdar (PW-07) was sleeping in her bedroom and, on the direction of the police officials, he (Arun Kumar Benerjee) alongwith Falguni Bose (PW-09) took her out from the place of incident. The wife of the deceased, namely, Rooma Majumdar (A-1) was sitting in the house of another neighbour, namely, Deepak Kumar Verma (PW-01). The household articles were lying on the floor and doors of Almirah were opened.

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(5) On the aforesaid report so lodged by Arun Kumar Benerjee

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Page 5 of 40

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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(PW-02), the police registered FIR (Ex.P/28 & Ex.P/28A) and and wheels of investigation started running, in which, dehati nalsi (Ex.P/01) and dehati marg (Ex.P/08) were recorded. Summons under Section 175 of CrPC were sent vide Ex.P/04 and inquest proceedings were conducted vide Ex.P/05. Nazari Naksha was also prepared vide Ex.P/03. Merg inquriy was also conducted vide Ex.P/29. The dead-body of the deceased was sent for postmortem examination and in the postmortem report (Ex.P/31), conducted by Dr. J.K. Yadav (PW-22), it was opined that the cause of death of deceased is shock due to external and internal haemorrhage and nature of death is homicidal. From the place of incident, following articles and jewelries were seized vide Ex.P/06, Ex.P/07 & Ex.P/39 respectively:

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Seizure Memo (Ex.P/06)	Seizure Memo (Ex.P/07)	Seizure of Jewelries and its supurdnama (Ex.P/39)
1. One blood stained matt;	1. One Alluminum vessel with	1. One gold chain; 2. One pair of gold
2. One plain/simple matt;	remains of pudding;	earrings; 3. One pair of gold
3. One blood stained towel;	2. One plastic bottle;	spoons; 4. One gold ring
4. One blood stained bed-sheet; 5. One blood stained pillow cover; 6. One Woolen sweater; 7. One Men’s underwear; & 8. One Inner-wear.	3. One steel plate; 4. Three spoons.	(gents); 5. Four pieces of gold ring (ladies); 6. Two pieces of gold ring (children); 7. One pair of gold nose ring/nathiya; 8. Three pieces of yellow metal bangles; 9. Onepair of silver

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Page 6 of 40

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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anklets; 10. Four pieces of silver bangles/ chudi .

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(6) Thereafter, on suspicion all the accused/appellants were arrested vide Ex.P/44 to P/47 respectively and their memorandum statements were recorded vide Ex.P/09 to Ex.P/12 respectively, pursuant to which, except appellantRooma Majumdar (A-1), following articles were seized from the possession of the remaining accused/appellants, ;

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Dulal Chakravarty (A-2):

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Seizure (Ex.P/13) by A-2	Seizure (Ex.P/15) by A-2
Nokia Mobile 1110	Three disposableplates
Nokia Classic 2730	Three disposable cups
Broken samsung galaxy cover batteryscreen	Three disposable glass
Cash amounting to Rs.2,200/-	Three bottles of country made liquor
Bamboo stick	Twoplastic bottles
Jeans

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Motilal (A-3) and Bheem Kumar (A-4):

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Seizure (Ex.P/14) by A-3	Seizure (Ex.P/17) by A-4
Fourgold bangles	Samsungmobile D-780
Onegold chain	Fullpant
Onegold necklace	Full shirt
Onegold necklace
Onegold chain
Fourpairs ofgold earrings
Towgold rings
Onegold bangle
Onegold locket
One silver_challa_
Onepair of silver anklets
Two_sindoor tikkas_

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Page 7 of 40

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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One silver hair clips
Three silver coins
Silver crystal
Silver necklace withgoldpolish
Four bronze bangles
One necklace
One mobilephone(big)
Jeans
Motorcycle

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(7) Further, one axe has also been seized near the house of one Abdul Quayum vide Ex.P/23 and viscera of the deceased alongwith contents of stomach were also preserved and seized. The aforesaid seized articles were sent for chemical examination to State Forensic Science Laboratory, Raipur vide Ex.P/54 to P/ 56 respectively and as per FSL reports [Ex.P/60(2) & Ex.P/61(2)] it has been opined that chemical substance, namely, Diazepam was found in the viscera of the deceased as also on the aluminum vessel, plastic bottle, steel plate and spoons, which were seized from the place of incident vide Ex.P/07, whereas as per FSL report (Ex.P/62) it has been opined as under:

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Human blood found on	Only blood found on
Article-N i.e. axe seized near the	Article-Y i.e. shirt seized from
house of one AbdulQuayum.	appellant-Bheem(A-4)
Article-A, C, D, E i.e. matt,
towel, bed-sheet, pillow cover seized from the spot_(that of AB_ Group).
Article-X i.e. full-pant seized from appellant- Bheem(A-4).
Article-A5 i.e. full-pant/jeans seized from appellant- Motilal

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Page 8 of 40

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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(A-3) (that of B Group) . Article-A9 i.e. inner-wear of the deceased (that of B Group) .

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(8) In the instant case, spot inspection of the place of incident was also conducted by Police Inspector/Station House Officer, Police Station Chirmiri, namely, Junas Bada (PW-27) vide Ex.P/ 37, whereby one steel Almira, six jewelry boxes, one laptop, two multipurpose boxes, four plastic passbook cover etc. were inspected. Furthermore, finger prints found on one multipurpose box were also taken vide Article-03 & 04 and marked as A1, A2 & A3 and, thereafter, finger prints of all the accused/appellants herein were also taken vide Finger Print Search Slips (Articles-05 to 08) and same were marked as S1 to S4. The aforesaid samples of finger prints were sent for matching/examination to a Finger Print Expert at Police Head Quarter, Finger Print Branch, Raipur, which was conducted by Linus Kispotta (PW-23) and in his report (Ex.P/38) it has been opined that upon matching of aforesaid finger prints, the finger print found on the multipurpose box (marked as A1) completely matched with the finger print marked as S2,RTI, which belongs to appellant- Dulal Chakravarty (A-2) and both the finger prints (i.e. A1 & S2,RTI) are of his right hand thumb. Call details alongwith mobile bills were also seized vide Ex.P/63 to P/67, P/21 & P/30 respectively Thereafter, statements of witnesses were recorded and, after due

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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investigation, the police filed charge-sheet against all the accused-appellants in the competent criminal Court having jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellants/accused abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated.

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(9) The prosecution in order to prove its case examined as many as 27 witnesses and exhibited 67 documents apart from Article-A, Article-01 to Article-08 and final report, whereas the accused/appellants in support of their defence have not examined any witness, but exhibited 02 documents (Ex.D/01 & D/02).

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(10) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict all four accused-appellants herein for offence under Section 302, 120-B & 201 of IPC and sentenced them as mentioned hereinabove, against which these three appeals have been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence.

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(11) Mr. Sudhir Kumar Bajpai, learned counsel appearing for appellant- Rooma Majumdar (A-1) in CRA-1576-2017 would submit that the learned trial Court is absolutely unjustified in

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Page 10 of 40

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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convicting appellant- Rooma Majumdar (A-1) for offences punishable under Sections 302, 120-B & 201 of IPC, as the prosecution has failed to prove the said offences beyond reasonable doubt. He further submits that there is no direct evidence available on record against appellant- Rooma (A-1) and the incriminating circumstances putforth by the prosecution and found proved by the learned trial Court are not sufficient to connect appellant- Rooma (A-1) with the offences in question. Though, as per FSL reports [Ex.P/60(2) & Ex.P/61(2)] chemical substance, namely, Diazepam was found in the viscera of the deceased as also on the aluminum vessel, plastic bottle, steel plate and spoons, which were seized from the place of incident vide Ex.P/07, but there is no evidence or any other material available on record to show that the said chemical substance, namely, Diazepam was mixed by appellant- Rooma (A-1) in the food/pudding, which was consumed by her husband (deceased) and neither the same was recovered from the place of incident or from any of the accused persons/appellants herein. It is contended that as per prosecution case itself, the food which was consumed by the deceased, was also consumed by appellant- Rooma (A-1) and her daughter, namely, Ku. Tulika (PW-07), but the prosecution has failed to obtained any medical test report from any medical expert in this regard. In absence of

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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which, appellant- Rooma (A-1) cannot be held to be the author of the crime in question. By placing reliance of a decision rendered by the Supreme Court in the matter of Raja Nayka v. State of Chhattisgarh1 it is contended that only on the basis of FSL report, the accused/appellant cannot be convicted for offence under Section 302 of IPC that too when other corroborating pieces of incriminating circumstances are missing. Learned counsel also submits that the learned trial Court has committed grave legal error in applying Section 106 of the Indian Evidence Act, 1872 (for short the “Evidence Act”) for convicting appellantRooma (A-1) for the simple reason that on the date and time of the offence, appellant- Rooma (A-1) and her husband (deceased) were not the only inmates who were residing in the house (place of incident) and their daughter, namely, Ku. Tulika (PW-07), aged about 13 years, was also residing alongwith them. He relied on Balvir Singh v. State of Uttarakhand2 to bolster his submissions in this regard. As such, appellant- Rooma Majumdar (A-1) is entitled for acquittal on the basis of benefit of doubt and her appeal deserves to be allowed.

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(12) Mr. Gajendra Sahu, learned counsel appearing for appellant- Dulal Chakravarty (A-2) in CRA-674-2017 would submit that there is no evidence available on record against

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1 2024 SCC Online SC 67

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2 2023 SCC Online SC 1261

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Page 12 of 40

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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appellant- Dulal (A-2) and only on the basis of Finger Print Expert report (Ex.P/38), wherein it has been opined that “upon matching, the finger print found on the multipurpose box (marked as A1) completely matched with the finger print marked as S2,RTI, which belongs to appellant- Dulal (A-2) and both the finger prints (i.e. A1 & S2,RTI) are of his right hand thumb”, which is duly proved by Linus Kispotta (PW-23), who has conducted the same, the appellant- Dulal (A-2) has been convicted for the offences in question. However, the said multipurpose box has neither been seized nor produced before the Court or exhibited with the record and, in absence of which, Finger Print Expert report (Ex.P/38) pales into insignificance and cannot be relied upon to convict appellant- Dulal (A-2). Even otherwise, though Finger Print Expert report (Ex.P/38) is a corroborative piece of evidence, but merely on that basis it cannot be presumed that appellant- Dulal (A-2) was present on the place of incident at the time of commission of the offence and have committed the crime. As such, appellant- Dulal Chakravarty (A-2) is also entitled for acquittal on the basis of benefit of doubt and his appeal also deserves to be allowed.

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(13) Mr. Maneesh Sharma, learned counsel appearing for appellants- Motilal (A-3) and Bheem Kumar (A-4) in CRA-1492017 would submit that the learned trial Court is absolutely

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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unjustified in convicting the appellants- Motilal (A-3) and Bheem Kumar (A-4) for offences punishable under Sections 302, 120-B & 201 of IPC, as the prosecution has failed to established the said offences against them beyond reasonable doubt. He further submits that though pursuant to the memorandum statement of appellant- Motilal (A-3), one full-pant/jeans alongwith jewelries were seized vide Ex.P/14 and, as per FSL report (Ex.P/62), stains of human blood having Group-B were found on the said full-pant/jeans seized from appellant- Motilal (A-3), but the prosecution has failed to prove as to whose blood has been found on the said full-pant/jeans, which is having “Group-B” and, furthermore, as per FSL report (Ex.P/62) itself, stains of human blood having “Group-AB” were found on the articles which were seized from the place of incident where the deadbody of the deceased was lying, i.e. matt, towel, bed-sheet, pillow cover. So far as recovery of mobile phone of the deceased alongwith full-pant and shirt, pursuant to the memorandum statement of appellant- Bheem (A-4) vide Ex.P/17 is concerned, though as per FSL report (Ex.P/62), stains of human blood and only blood were found on the said full-pant and shirt respectively, but the prosecution has miserably failed to determine as to whose blood and of which group were found on the said clothes and the prosecution has further failed to

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Page 14 of 40

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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ascertain the exact blood group of the deceased. As such, in view of aforesaid infirmities, the recovery of aforesaid blood stained clothes from appellants- Motilal (A-3) and Bheem (A-4) is of no help to the prosecution more particularly when witnesses to said memorandum statements and seizure memos, namely, Vivek Singh (PW-13) and Santosh Kumar (PW-26) have completely turned hostile and have not supported the case of the prosecution at all. Moreover, so far as, the jewelries which are seized from appellant- Motilal (A-3) vide Ex.P/14 are concerned, the same were not identified by any witness or by any other person, to show that same belongs to the deceased or his wife (appellant- Rooma), in absence of which, recovery of said jewelries from appellant- Motilal (A-3) is of no help to the prosecution and same cannot be relied upon to convict the appellant. As such, appellant- Motilal (A-3) and Bheem Kumar (A-4) are also entitled for acquittal on the basis of benefit of doubt and their appeal also deserves to be allowed.

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(14) Per-contra , Mr. Rahul Tamaskar, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offences beyond reasonable doubt by leading evidence of clinching nature. He further submits that since appellantRooma (A-1) was having relationship with Dulal Chakravarty (A-

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Page 15 of 40

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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otherwise then marriage, therefore, in order to eliminate her husband (deceased), all the accused-appellants herein conspired with each other, shared common intention and committed murder of the deceased. In view of incriminating circumstances as culled out in Para-14 of the impugned judgment, the learned trial Court has rightly convicted all the accused-appellants herein for offences under Sections 302, 120-B and 201 of IPC. Hence, all the appeals are liable to be dismissed.

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(15) 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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(16) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/31), wherein it has been opined that cause of death of the deceased is shock due to external and internal haemorrhage and nature of death is homicidal, which is duly proved by statement of Dr. J.K. Yadav (PW-22). Accordingly, taking into consideration the postmortem report (Ex.P/31) and the statement of Dr. J.K. Yadav (PW-22), who has conducted 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

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Page 16 of 40

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

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(17) Now, the next question would be whether the accusedappellants herein are authors of the crime in question or not, which the learned trial Court has recorded in affirmative by replying upon following incriminating circumstances as culled out in Para-14 of the impugned judgment:

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“1?kVuk ds le; ?kVukLFky ij vkjksih :ek etwenkj dh ekStwnxhA

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2- ?kVuk fnukad dks jkf= esa vkjksih :ek etwenkj }kjk jkf= Hkkst esa [khj dk fuekZ.k ,oa lnL;ksa ds }kjk mDr [khj dk lsouA

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3- vkjksih :ek etwenkj dk vkpj.kA

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4- vkjksih nqyky pdzorhZ dk e`rd ds ?kj iwoZ ls vkuk tkuk ,oa vkjksih :ek etwenkj ls utnhfd;k ,oa vkjksih :ek etwenkj dk gsrqdA

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5- vkjksihx.k ds pfyr nwjHkk’kk ds fooj.kA

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6- vkjksihx.k ds c;ku ds eseksjs.Me ,oa mlds vk/kkj ij dh xbZ tIrh dk;ZokghA

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7- tIr”kqnk lkefxz;ksa dh ?kVuk ,oa vkjksihx.k ls vkfyIrrkA

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8- ?kVuk Lfky ls izkIr fMCcs esa vkjksih nqyky ds vaxqy fpUg dk feyukA

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9- vkokl ds Hkhrj ?kVh ?kVuk ds laca/k esa vkjksih :ek etwenkj ds Li’Vhdj.k dk vHkkoA

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10?kVuk ds ifjizs{; esa vkijkf/kd ‘kM+;a= dh jpukA

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11Lkk{; dk foyksiuA”

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(18) In the present case, since there is no direct evidence available on record against the accused-appellants herein and case of the prosecution is solely based on circumstantial evidence mentioned above, therefore, it is profitable here to note

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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following five golden principles laid down by their Lordships of

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the Supreme Court in the matter of Sharad Birdhichand Sarda

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vs. State of Maharashtra3 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as under:

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

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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:

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"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."

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(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,

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

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

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(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

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3 (1984) 4 SCC 116

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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accused and must show that in all human probability the act must have been done by the accused.”

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(19) Considering the nature of evidence available on record against each of the accused-appellants herein, we shall consider all three appeals preferred by the accused-appellants herein separately in light of the incriminating circumstances stated hereinabove.

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: Appeal of Rooma Majumdar (A-1) [CRA-1576-2017]

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(20) Appellant- Rooma Majumdar (A-1) has basically been convicted on the basis that: on the date and time of the offence, she was present in the house and she prepared/cooked pudding, which was ate by her husband (deceased) and daughter, namely, Ku. Tulika (PW-07), improper conduct of appellant- Rooma Majumdar and she was having motive to commit the offence as appellant- Dulal (A-2) used to visit the house of the deceased and he was having closeness with appellant- Rooma Majumdar (A-1) and since the dead-body of the deceased was found lying in the house where the deceased used to reside with appellantRooma (A-1) and appellant- Rooma (A-1) failed to explained in her statement recorded under Section 313 of CrPC as to how and in what manner her husband (deceased) suffered injuries and died, therefore, learned trial Court applied under Section 106 of the Evidence Act to convict her. As such, in view of

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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aforesaid incriminating circumstances against appellant- Rooma (A-1) and in order to make our findings more clear, we will consider the followings evidences: (a) motive of the offence qua appellant- Rooma (A-1); (b) conduct of appellant- Rooma (A-1); (c) applicability of Section 106 of the Evidence Act and nonexplanation on the part of appellant- Rooma (A-1) and (d) FSL reports [Ex.P/60(2) & Ex.P/61(2)], wherein it has been opined that chemical substance, namely, Diazepam was found in the viscera of the deceased as also on the aluminum vessel, plastic bottle, steel plate and spoons, which were seized from the place of incident vide Ex.P/07.

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Motive of the offence qua appellant-Rooma (A-1):

¶143

(21) The prosecution has attributed motive on the part of appellant- Rooma (A-1) to commit murder of the deceased on the pretext that since appellant- Rooma (A-1) was having closeness/ relationship with appellant- Dulal (A-2) otherwise than marriage and, on that account, appellant- Dulal (A-2) used to visit her house, therefore, in order to eliminate her husband (deceased), on the date of offence, appellant- Rooma (A-1) prepared pudding and mixed chemical substance, namely, Diazepam in it and said Diazepam, as per FSL reports [Ex.P/60(2) & Ex.P/61(2)], was also found in the viscera of the deceased as also on the aluminum vessel, plastic bottle, steel plate and spoons seized

¶144

Page 20 of 40

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from the place of incident. However, as per prosecution case itself it is quite clear that since it was the house of the deceased and appellant- Rooma (A-1) used to reside alongwith him together being his wife, therefore, presence of the appellantRooma (A-1) on the place of incident at the time of commission of offence is quite nature and common fact and that cannot be treated to be an incriminating circumstance to connect her with the crime in question. Similarly, preparation/cooking of pudding by appellant- Rooma (A-1) and consumption of the same by the deceased and their daughter, namely, Ku. Tulika (PW-07) is also a common household work of a woman in a family and same cannot be treated to be an unnatural conduct on the part of the appellant- Rooma (A-1). Furthermore, according to the statement of Ku. Tulika (PW-07), appellant- Dulal (A-2) is her maternal uncle and he has good relationship with his father (deceased), therefore, visit of appellant- Dulal (A-2) being brother of appellant- Rooma (A-1) cannot be presumed to be relationship between them outside the marriage. As such, circumstances pointed out by the learned trial Court in this regard cannot be held to be incriminating circumstances against appellantRooma (A-1). Apart from it, even if it is accepted that there was motive on the part of appellant- Rooma (A-1) to commit murder of the deceased on account of relationship with appellant- Dulal

¶147

Page 21 of 40

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¶149

(A-2) otherwise than marriage, then also it is well settled law that motive may be an important circumstance in a case based on circumstantial evidence, but it cannot take place of conclusive proof. (See: Sampath Kumar vs. Inspector of Police, Krishnagiri4 ). In a recent decision rendered in the matter of Mahendra Singh vs. State of M.P.5 their Lordships of Supreme Court reiterated the law on the point stating that merely because motive is established, solely on that basis accused cannot be convicted under Section 302 of IPC. We hereby hold accordingly.

¶150

: Conduct of appellant- Rooma (A-1)

¶151

(22) In the present case, the learned trial Court has held that the conduct of the appellant- Rooma (A-1) was improper and objectionable, as on the date and time of the offence, she has sent her daughter- Ku. Tulika (PW-07) to her neighbour’s house, namely, Deepak Kumar Verma (PW-01) in order to facilitate herself and other accused persons to commit the crime in question and she has also not explained anywhere as to why she has taken such step of sending her daughter to her neighbour’s house, which is relevant fact under Section 08 of the Evidence Act. It is well settled law that previous/subsequent conduct of an accused is relevant fact under Section 8 of the Evidence Act but same cannot be made sole basis to convict him that too for

¶152

5 (2022) 7 SCC 157

¶153

4 (2012) 4 SCC 124

¶154

Page 22 of 40

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

¶156

offence of murder (See: Subramanya v. State of Karnataka 6 [Para-95]). We hereby hold accordingly.

¶157

Applicability of Section 106 of the Evidence Act and nonexplanation on the part of appellant- Rooma (A-1):

¶158

(23) The learned trial Court has convicted appellant- Rooma (A1) by invoking Section 106 of the Evidence Act and further in Para-54 of the impugned judgment held that since the incident took place in the house of the deceased where appellant- Rooma (A-1) and her husband (deceased) used to reside alongwith their daughter- Ku. Tulika (PW-07) and, on the date of offence, she prepared pudding and mixed chemical substance, namely, Diazepam in it, which was consumed by her husband (deceased) and her daughter- Ku. Tulika (PW-07), upon which, deceased died and her daughter- Ku. Tulika (PW-07) fell asleep and she was the only person who remained in conscious state at the time of offence, therefore, non-explanation on her part as to how and in what manner her husband (deceased) died is an important incriminating circumstance against her. However, in the present case, the prosecution has failed to led any material/evidence on record to show that the said pudding in which chemical substance, namely, Diazepam was mixed, was consumed by Ku. Tulika (PW-07) due to which she fell asleep, therefore, we find no reason to believe the said finding recorded by the learned trial

¶159

6 2022 S 2 OnLine SC 1400

¶160

Page 23 of 40

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¶162

Court, as the same is perverse and liable to be discarded. Further, so far as non-explanation on the part of the appellantRooma (A-1) that as to how and in what manner her husband (deceased) died, as she was residing together with him on the date and time of the offence, for which, the learned trial Court invoked Section 106 of the Evidence Act and held appellantRooma (A-1) guilty for committing offence under Section 302 of IPC, is concerned, their Lordships of the Supreme Court in the matter of Nagendra Sah v. State of Bihar7 while considering the applicability of Sections 106 of the Evidence Act, held in Paras19 22 & 23 as under:

¶163

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

7 (2021) 10 SCC 725

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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.

¶169

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 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.”

¶170

(24) Similar preposition has been laid down by their Lordships of the Supreme Court recently in the matter of Balvir Singh (supra), whereby reviewing its earlier decision on the point of Section 106 of the Evidence Act, held that Section 106 has to be applied in criminal cases with care and caution and held in paragraphs 41 to 48 as under:-

¶171

“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

¶172

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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.

¶175

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.

¶176

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 ex-

¶177

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planation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams:

¶180

“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.”

¶181

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.

¶182

Page 27 of 40

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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).

¶185

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

¶186

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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.

¶189

WHAT IS “PRIMA FACIE CASE” IN THE CONTEXT OF SECTION 106 OF THE EVIDENCE ACT?

¶190

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. 48. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from

¶191

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which a reasonable inference can be drawn regarding death. ”

¶194

(25) Reverting to the facts of the present case in light of aforesaid principles of law laid down by their Lordships of the Supreme Court in above mentioned judgments, what requires consideration is whether the prosecution has been able to discharge its primary burden of proving its case beyond reasonable doubt. In the instant case, the prosecution has been able to establish the fact that the death of the deceased was homicidal in nature and the trial Court has recorded the finding that the deceased was found dead in his house, where he used to reside alongwith his wife (appellant-Rooma) and appellantRooma (A-1) has not been able to explain in her statement recorded under Section 313 of CrPC as to how and in what manner her husband (deceased) died, thus, invoked Section 106 of the Evidence Act. However, in the instant case neither the prosecution witnesses have deposed before the Court nor any material has been brought on record to show that the relationships between appellant- Rooma (A-1) and her husband (deceased) was strained in any manner. Even otherwise, as per prosecution case itself, on the date and time of the offence, alongwith appellant- Rooma (A-1) and her husband (deceased), their daughter, namely, Ku. Tulika (PW-07) was also residing, therefore, the fact established cannot be said to be consistent

¶195

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with the hypothesis of the guilt of appellant- Rooma (A-1) and it cannot be held that appellant- Rooma (A-1) and her husband (deceased) were the only inmates who were alone residing together in the house at the time of commission of the offence. Further, though non-explanation on the part of appellantRooma (A-1) as to how and in what manner deceased died is an important incriminating circumstance, but it cannot be made sole basis to convict the appellant for the offences in question that too when, in the present case, the chain of circumstances are not complete to hold that it is only and only appellantRooma (A-1) who is author of the crime in question. Therefore, in light of dicta rendered in the matters of Nagendra Sah (supra) and Balvir Singh (supra), we are unable to hold that the learned trial Court is justified in invoking Section 106 of the Evidence Act to convict the appellant- Rooma (A-1) for the offence in question. We hereby hold accordingly.

¶198

: FSL reports [Ex.P/60(2) & Ex.P/61(2)]

¶199

(26) The last incriminating circumstance that has been found proved by the learned trial Court against appellant- Rooma (A-1) is that as per FSL reports [Ex.P/60(2) & Ex.P/61(2)] chemical substance, namely, Diazepam was found in the viscera of the deceased as also on the aluminum vessel, plastic bottle, steel plate and spoons, which were seized from the place of incident

¶200

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vide Ex.P/07. At this stage, it is important to note there that Diazepam was first marketed as Valium , which is a medication of the benzodiazepine family typically produces a calming effect. It is commonly used to treat a range of conditions including anxiety, alcohol withdrawal syndrome, benzodiazepine withdrawal syndore, muscle spasms, seizures, trouble sleeping and restless legs syndrome . True it is that said Diazepam was found on the aforesaid articles including the viscera of the deceased, but there is no material available on record to show that said Diazepam was seized from the place of incident or the same was seized from the possession of appellant- Rooma (A-1) either in tablet form or in liquid form, indeed, the aforesaid articles i.e. aluminum vessel, plastic bottle, steel plate and spoons, in which remains of pudding (mixed with Diazepam), were seized from the place of incident vide Ex.P/07 and, merely on that basis it cannot be presumed that appellant- Rooma (A-1) has mixed Diazepam in the pudding, which was consumed by the deceased and died. Even otherwise, though memorandum statement of the appellant- Rooma (A-1) was recorded vide Ex.P/09, but nothing has been recovered/seized from her possession.

¶203

(27) The Supreme Court recently in the matter of Raja Naykar (supra) by relying upon its earlier decision rendered in the

¶204

matter of Mustkeen @ Sirajudeen v. State of Rajasthan8 has 8 (2011) 11 SCC 724

¶205

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held that sole circumstance of recovery of blood-stained weapon cannot form the basis of conviction unless the same was connected with the murder of the deceased by the accused and, further, it has also been held that only on the basis of sole circumstance of recovery of blood-stained weapon, it cannot be said that the prosecution has discharged its burden of proving the case beyond reasonable doubt. It has also been held that merely on the basis of suspicion, conviction would not be tenable and it is the duty of the prosecution to prove beyond all reasonable doubt that it is only the accused and the accused alone who has committed the crime. As such, in view of aforesaid principle of law, it is quite clear that only on the basis of FSL reports [Ex.P/60(2) & Ex.P/61(2)] whereby chemical substance, namely, Diazepam was found in the viscera of the deceased as also on the aluminum vessel, plastic bottle, steel plate and spoons, which were seized from the place of incident vide Ex.P/07, the appellant- Rooma (A-1) cannot be held guilty that too for an offence under Section 302 of IPC. We hereby hold accordingly. Consequently, in that view of the matter, there is no legally admissible evidence available against appellant- Rooma Majumdar (A-1) to convict her for the offences in question and, therefore, she is entitled for acquittal on the basis of benefit of doubt.

¶208

Page 33 of 40

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Appeal of Dulal Chakravarty (A-2) [CRA-674-2017]

¶211

(28) Appellant- Dulal Chakravarty (A-2) has mainly been convicted on the basis of finger print expert report (Ex.P/38), whereby it has been opined that upon matching/examination, the finger print found on the multipurpose box (marked as A1) completely matched with the finger print taken vide Article-3 (marked as S2,RTI), which belongs to appellant- Dulal Chakravarty (A-2) and both the finger prints (i.e. A1 & S2,RTI) are of his right hand thumb. It is contended on behalf of appellant- Dulal (A-2) that the said multipurpose box, upon which finger print marked as A1 was taken, has neither been seized nor produced before the Court or exhibited with the record and, in absence of which, finger print expert report (Ex.P/ 38) pales into insignificance and cannot be relied upon to convict the appellant- Dulal (A-2) that too in absence of any other piece of corroborating circumstance against him. It is also contended on behalf of appellant- Dulal (A-2) that though from the possession of the appellant- Dulal (A-2) certain articles have been seized vide Ex.P/13 & P/15, but nothing incriminating has been found in all the aforesaid seized articles. It is well settled law that the Court is not bound by the expert opinion which is merely an evidence in the case and that should be considered alongwith the other evidence and circumstances appearing in a

¶212

Page 34 of 40

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particular case. [See: Asiatic Steam Navigation Co. Ltd. v. Sub-Lt. Arabinda Chakravarti9 ]. It is also well settled law that conviction of accused cannot be based on the opinion of the hand-writing expert but it can be relied upon when supported by other items or internal and external evidence [See: S. Gopal Reddy v. State of Andhra Pradesh10 ].

¶215

(29) The Supreme Court in the matter of Musheer Khan @ Badshah Khan and another v. State of Madhya Pradesh11 has

¶216

held that evidence of finger print expert report is not a substantive piece of evidence and such evidence can be used to corroborate some items of substantive evidence which are otherwise on record. Similarly, in the matter of Roop Singh v. State of Punjab12 (Para-13) it has been held that there was no evidence led by the prosecution to show that the print in question came into existence at the time of alleged incident took place. Further, the Supreme Court in the matter of Nagaraja v. State of Karnataka13 clearly held that while taking finger print of an accused though permission from the Magistrate is not required to be taken in law, but in order to eliminate the suspicion it ought to have been taken and held in Para-15 as under:

¶217

9 AIR 1959 SC 597 (P. 601)

¶218

10 AIR 1996 SC 2184 (P. 2192)

¶219

11 AIR 2010 SC 762

¶220

12 AIR 2009 SC (Suppl.) 444

¶221

13 (2020) 2 SCC 257

¶222

Page 35 of 40

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¶224

“ 15. We may also refer to the other circumstance, namely, matching the fingerprints of the appellant with the chance fingerprints, which were found on certain utensils. PW-14, in his deposition admitted that he has not obtained permission from the Magistrate for taking the fingerprints of the accused. The Magistrate, in fact, has referred to the judgment of this Court reported in Mohd. Aman v. State of Rajasthan, (1997) 10 SCC 44 . In the said case, it was held as follows inter alia:-

¶225

“Even though the specimen finger-prints of Mohd. A man had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take finger-prints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate. The other related infirmity from which the prosecution case suffers is that the brass, jug, production of which would have been the best evidence in proof of the claim of its seizure and subsequent examination by the Bureau, was not produced and exhibited during trial – for reasons best known to the prosecution and unknown to the Court. Thus the accused could not be convicted for murder.””

¶226

(30) Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in above stated judgments, it is quite vivid that in the instant case admittedly the multipurpose box, from which finger print marked as A1 was found to be similar to that of finger print of appellant- Dulal (A-

¶227

Page 36 of 40

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2), has neither been seized, nor produced before the Court and same has also not been exhibited with the record and, further, learned State counsel appearing before us or before the trial Court failed to point out that any permission was taken from the concerned Magistrate before taking the finger prints of the accused persons on 14.12.2012. Apart from it, as per the statement of Ku. Tulika (PW-07), appellant- Dulal (A-2) is her maternal uncle being the brother of appellant- Rooma (A-1) and, therefore, his visit in the house of the deceased is quite obvious and finger print, if any, found of the multipurpose box, which was neither produced before the trial Court nor exhibited with the record, cannot be treated to be an incriminating circumstance against him that too when there is no evidence available on record in the present case to show that the finger print in question came into existence on the date and time of the offence, therefore, in view of dicta of the Supreme Court in the matter of Musheer Khan @ Badshah Khan (supra), whereby their Lordships clearly held that the evidence of finger print expert report is not a substantive piece of evidence and such evidence can be used to corroborate some items of substantive evidence which are otherwise on record, the learned trial Court is absolutely unjustified in convicting appellant- Dulal (A-2) solely on the basis of evidence of finger print expert report (Ex.P/

¶230

Page 37 of 40

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38). We hereby hold accordingly. Consequently, there is no legally admissible evidence available against appellant- Dulal (A2) to convict him for the offences in question and, therefore, he is entitle for acquittal on the basis of benefit of doubt.

¶233

Appeal of Motilal (A-3) & Bheema (A-4) [CRA-149-2017]:

¶234

(31) Appellant- Motilal (A-3) has been convicted only on the basis that pursuant to his memorandum statement recorded vide Ex.P/11, one full-pant/jeans and some jewelries were seized vide Ex.P/14 and as per FSL report (Ex.P/62) human blood having “Group-B” was found on the said full-pant/jeans. However, as per FSL report (Ex.P/62) itself, stains of human blood having “Group-AB” were found on the articles which were seized from the place of incident where the dead-body of the deceased was lying i.e. matt, towel, bed-sheet, pillow cover vide Ex.P/07. Though, as per FSL report (Ex.P/62) stains of human blood having “Group-B” were found on the inner-wear of the deceased, but the prosecution has failed to produce any material on record to show the exact blood group of the deceased, whether he was having “Group-AB” or “Group-B” and further failed to established as to whose blood has been found on the said full-pant/jeans seized from appellant- Motilal (A-3), which is having “Group-B”. So far as, the jewelries which are seized from appellant- Motilal (A-3) vide Ex.P/14 are concerned, the same

¶235

Page 38 of 40

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were not identified by any of the prosecution witnesses nor any document has been brought on record by the prosecution to show that same belongs to the deceased or his wife (appellantRooma), in absence of which, recovery of said jewelries from appellant- Motilal (A-3) is of no help to the prosecution. It is the case of the prosecution that pursuant to the memorandum statement of appellant- Bheem Kumar (A-4) recorded vide Ex.P/ 12, one mobile phone belonging to the deceased was seized vide Ex.P/17, but witnesses to said memorandum and seizure, namely, Vivek Singh (PW-13) and Santosh Kumar (PW-26) have turned hostile and have not supported the case of the prosecution at all and, even otherwise, if it is held that mobile phone of the deceased was found in the possession of appellantBheem (A-4), then at the best offence under Section 392 of IPC would be made out against him and, in absence of other incriminating circumstances, the appellant- Bheem (A-4) cannot be held guilty for offence under Section 302 of IPC. Furthermore, so far as recovery of full-pant and shirt from appellant- Bheem (A-4) is concerned, in which as per FSL report (Ex.P/62) stains of human blood and only blood respectively were found, the prosecution has miserably failed to determine as to whose blood and of which group were found on the said clothes and the prosecution has further failed to ascertain the exact blood group

¶238

Page 39 of 40

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of the deceased, in absence of which, the recovery of blood stained clothes are of no help to the prosecution and same cannot be relied upon to convict the appellant.

¶241

(32) In that view of the matter, in light of aforesaid infirmities and illegalities, recovery of jewelries and mobile phone of the deceased from appellants- Motilal (A-3) and Bheem (A-4) vide Ex.p/14 & Ex.P/17 respectively are of no help to the prosecution and cannot be relied upon to hold them guilty for the offences in question and further following the principles of law laid down by their Lordships of the Supreme Court in the matter of Raja Naykar (supra), sole circumstance of recovery of blood-stained article/clothes cannot form the basis of conviction of the appellants herein. We hereby hold accordingly. Consequently, there is no legally admissible evidence available against appellants- Motilal (A-3) and Bheem (A-4) also to convict them for the offences in question and, therefore, they are entitle for acquittal on the basis of benefit of doubt.

¶242

(33) In view of the forgoing analysis, 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 the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court is absolutely unjustified in

¶243

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(CRA-1576-2017, CRA-674-2017 & CRA-149-2017)

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convicting all the appellants herein for offences under Sections 302, 120-B & 201 of IPC in light of incriminating circumstances as culled out in Para-14 of the impugned judgment and same are liable to be set aside. Consequently, the conviction and sentence of all the accused-appellants herein, namely, Rooma Majumdar (A-1) , Dulal Chakravarty (A-2) , Bheem Kumar (A-3) and Motilal (A-4) for offences under Section 302, 120-B & 201 of IPC, as awarded to them by the learned trial Court by impugned judgment dated 10.01.2017, are hereby set aside. They are acquitted of the said charges on the basis of benefit of doubt. Since all the accused-appellants are in jail since 27.11.2012, they be released from jail forthwith, if not required in any other crime/matter.

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(34) All three criminal appeals are allowed . No cost.

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(35) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellants are languishing for necessary information and action, if any.

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

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s@if

Bheem Kumar and Another v. State Of Chhattisgarh

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Bheem Kumar and Another v. State Of Chhattisgarh

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