Dismissed

Ambikeshwar Singh v. State Of Chhattisgarh

Chhattisgarh HC10 Mar 2024CRA/1599/2016

Case brief

AI extract

What is this about?

Husband convicted of strangulating his wife and burning her body to screen the offence. The High Court affirmed that Section 106 of the Evidence Act applies once prosecution establishes a prima facie case, found the appellant's presence at the scene proved, rejected his plea of alibi as false, and dismissed the appeal upholding conviction and sentence.

What did the court decide?

Conviction under Sections 302 & 201 IPC and sentences (life imprisonment plus fine; RI 3 years plus fine) upheld; appeal dismissed.

Ambikeshwar Singh Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 1599 of 2016

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{Arising out of the judgment dated 27.09.2016 passed in Sessions Trial No.19/2016 by the learned Second Additional Sessions Judge, Surajpur}

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Ambikeshwar Singh, S/o. Ramprasad Singh, Aged About 40 Years, R/o. Village- Lachha, Sarnapara, Police StationSurajpur, District- Surajpur, Chhattisgarh.

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Versus

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State Of Chhattisgarh, Through- Station House Officer, Police Station- Surajpur, District- Surajpur, Chhattisgarh.

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---Respondent

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(Cause Title taken from Case Information System)

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For Appellant : Mr. Akhilesh Mishra, Advocate/Panel Lawyer appointed by C.G. High Court Legal Aid Committee.

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For Respondent : Mr. Tarkeshwar Nande, 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

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(11.03.2024)

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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 27.09.2016 passed by learned Second Additional Sessions Judge, Surajpur,

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in Sessions Trial No.19/2016, by which, the appellant herein has been convicted for offence under Sections 302 & 201 of Indian Penal Code and sentenced as under with a direction to run both the sentences concurrently :-

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CONVICTION	SENTENCE
U/s. 302 of IPC.	: Life imprisonment and fine of Rs.100/-, in default of payment of fine, additional rigorous imprisonment for 2 months.
U/s. 201 of IPC.	: Rigorous imprisonment for
	3 years and fine of
	Rs.100/-, in default of payment of fine, additional rigorous imprisonment for 2 months.

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2 . Case of the prosecution, in short, is that on 10.12.2015 at night, the appellant herein strangulated to death his wife Sita Bai (now deceased) and thereafter, in order to screen himself from the legal punishment, poured kerosene oil on her body and set her ablaze by match-stick; thereby the offence has been committed. Thereafter, on the next day, on 11.12.2015, the appellant reported the matter to the police that his wife has died due to burn injuries, pursuant to which, merg intimation was recorded vide Ex.P-14 and the wheels of investigation started

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running. Thereafter, the FIR was registered vide Ex.P16, inquest was conducted vide Ex.P-2 and dead body of deceased Sita Bai was subjected to post-mortem, which was conducted by Dr. Shashi Tirkey (PW-8), who proved the post-mortem report vide Ex.P-10, according to which, cause of death was stated to be asphyxia due to throttling and the body was burned more than 100% and death was homicidal in nature. The seized articles were sent for chemical examination to FSL and as per the FSL report (Ex.P-20), in Articles B, D & E stains of kerosene oil was found. After due investigation, the appellant was charge-sheeted for the aforesaid offence to the jurisdictional criminal court and the case 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 12 witnesses and exhibited 21 documents and the appellant-accused in support of his defence has examined one witness DW-1 and has exhibited one document Ex.D-1.

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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 Sections 302 & 201 of I.P.C. and sentenced him as mentioned in opening paragraph of this judgment, against which the present appeal has been preferred.

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5 . Mr. Akhilesh Mishra, learned counsel for the appellant would submit that only on the basis of invoking Section 106 of the Indian Evidence Act, the appellant has been convicted, which is not applicable in this case, as the appellant was not there on the place of incident, he has gone to Khalihan of Lahar Singh to sleep and he was not available in the house, therefore, the appellant has wrongly been convicted by the trial Court and, as such, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed.

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6 . Mr. Tarkeshwar Nande, learned State counsel would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the offence under Sections 302 & 201 of I.P.C. and, as such, the appeal deserves to be dismissed.

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7 . We have heard learned counsel for the parties, considered their rival submissions made hereinabove 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 Sita Bai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-20), proved by Dr. Shashi Tirkey (PW-8), according to which, cause of death was stated to be asphyxia due to throttling and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on 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 . The appellant has been convicted only by invoking Section 106 of the Evidence Act that in the house in question, the appellant and his wife along-with their minor children were present and none else was present and the appellant has not explained as to how and in what circumstances his wife has died, therefore, the appellant is the author of the crime in question. Apart from that, the relationship between

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the appellant and deceased was not cordial as per the statement of sister of deceased Kanti Singh (PW-6) and therefore, the motive of offence has also been established.

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10. Now, the question would be whether Section 106 of the Evidence Act has rightly been made applicable by the trial Court while convicting the appellant for offence under Section 302 of the IPC ?

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11. At this stage, it would be appropriate to quote Section 106 of the Indian Evidence Act, 1872, 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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12. This provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence

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Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned.

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13. In the matter of Shambhu Nath Mehra v. The State

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of Ajmer 1 , their Lordships of the Supreme Court have held that the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution, to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The Supreme Court while considering the word “especially” employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J., observed as under:

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“11. …The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on

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1.AIR 1956 SC 404

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the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B).”

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14. Their Lordships further held that Section 106 of the Evidence Act cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts.

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15. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar 2 in which it has been held by their Lordships of the Supreme Court as under: -

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“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

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2 (2021) 10 SCC 725

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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.

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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.

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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

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to convict the accused.”

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16. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab 3, while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him.

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17. The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with approval by their Lordships in the

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3 AIR 1956 SC 460

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matter of Sawal Das v. State of Bihar 4 and it has been held that burden of proving the case against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence.

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18. In the matter of Shivaji Chintappa Patil v. State of Maharashtra5 relying upon the Subramaniam v. State of Tamil Nadu6 their Lordships have held that when the husband and wife remaining within four walls of a house and death taking place, it would be a strong circumstance, but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive and observed in paragraph 20 as under:-

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“20. That leads us to the reliance placed by the High Court as well as the trial court on the provisions of Section 106 of the Evidence Act. In Subramaniam (supra), this Court had occasion to consider the similar case of the husband and wife remaining within the four walls of a house and death taking place. It will be relevant to refer to the following observations of this Court:-

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“23. So far as the circumstance that they had been living together is concerned, indisputably, the entirety of the situation should be taken into

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4 (1974) 4 SCC 193

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5 (2021) 5 SCC 626

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6 (2009) 14 SCC 415

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consideration. Ordinarily when the husband and wife remained within the four walls of a house and a death by homicide takes place it will be for the husband to explain the circumstances in which she might have died. However, we cannot lose sight of the fact that although the same may be considered to be a strong circumstance but that by alone in the absence of any evidence of violence on the deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and the husband alone was responsible therefor.”

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19. Similarly, their Lordships in Shivaji Chintappa

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Patil (supra) have relied upon the decision of Gargi v. State of Haryana7 and observed in paragraphs in 22 & 23 as under:-

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“22. It will also be relevant to refer to the following observations of this Court in the case of Gargi (supra):-

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“ 33.1. Insofar as the “last seen theory” is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The trial court and the High Court have proceeded on the assumption that Section 106 of the Evidence Act

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(2019) 9 SCC 738

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directly operates against the appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das (supra) in the following:

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“10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused.””

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It could thus be seen, that it is wellsettled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused.”

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20. Further, relying upon the decision of Sharad

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Birdhichand Sarda (supra) their Lordships further have concluded that by now it is well settled that principle of law, that false explanation or nonexplanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the accused. However, it cannot be used as a link to complete the chain of circumstances.

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21. Similarly, in the matter of Balvir Singh v. State of

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Uttarakhand8 , 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

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under:-

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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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2023 SCC OnLine SC 1261

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42. Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden of the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused.

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43. Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory. If in such a situation, the accused gives an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams:

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“All that the shifting of the evidential

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burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence.”

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44. To recapitulate the foregoing : What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is therefore for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions. If the accused had a different intention that is a fact especially within his knowledge and which he must prove (see Professor Glanville Williams— Proof of Guilt, Ch. 7, page 127 and following) and the interesting discussion—para 527 negative averments and para 528— “require affirmative counter-evidence” at page 438 and foil, of Kenny's outlines of Criminal Law, 17th Edn. 1958.

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45. But Section 106 has no application to cases where the fact in question having regard to its nature is such as to be capable

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of being known not only by the accused but also by others if they happened to be present when it took place. From the illustrations appended to the section, it is clear that an intention not apparent from the character and circumstances of the act must be established as especially within the knowledge of the person whose act is in question and the fact that a person found travelling without a ticket was possessed of a ticket at a stage prior in point of time to his being found without one, must be especially within the knowledge of the traveler himself : see Section 106 of the Indian Evidence Act, illustrations (a) and (b).

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46. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not 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 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

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confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might have been rebutted. Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution (Wharton's Criminal Evidence, 12th Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Leland v. State reported in 343 U.S. 790=96 L.Ed. 1302, Raffel v. U.S. reported in 271 U.S. 294=70 L.Ed. 1054.

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

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47. The Latin expression prima facie means “at first sight”, “at first view", or "based on first impression". According, to Webster’s Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “evi-Ideuce sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the charges against the defendant. If they cannot present prima 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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22. Thereafter, recently, in the matter of Santosh @

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Bhure v. State (G.N.C.T.) of Delhi9 it has been held that even if the accused fails to explain as to how the dead body of the deceased was found in his apartment, an inference of his guilt cannot be drawn. In nutshell, in any case the prosecution has to elevate its case from the realm of “may be true” to the plane of “must be true” as is indispensably required for conviction on the criminal charge.

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23. Returning to the facts of the present case in the light of the principles of law laid down by their Lordships in the above-mentioned judgments, it is quite vivid that the prosecution has been able to prove the death to be homicidal in nature and the motive for the offence has also been established on the basis of statement of Kanti Singh (PW-6), elder sister of the deceased, as prior to one month of the incident, the appellant has poured hot water on the face of her sister (deceased), by which, she suffered burn injury. Apart from that, the trial court has invoked Section

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2023 LiveLaw (SC) 418

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106 of the Evidence Act. Similarly, Ramprasad (PW-7) has clearly stated in para 3 of his statement that on the date of offence, the appellant, his daughter-in-law and their minor children were present in the house and when he was informed by his nephew Digambar (PW-1) about the incident then he reached to the spot and saw the dead body of the deceased and the appellant was present there and thereafter the wheels of investigation started running. Digambar (PW-1) has also supported the case and stated that when he was sleeping in the night then the appellant came at about 3:00 a.m. and informed that his wife has committed suicide then he reached to the spot and saw the dead body and the appellant has also lodged merg intimation vide Ex.P-14 and in the statement under Section 313 Cr.P.C. in question No.27, he was specifically asked that he was present on the date & time of offence, which he replied in negative. As such, the presence of the appellant at the place of occurrence on the date & time of offence is fully established. Apart from this, the appellant’s father Ramprasad (PW-7) was living separately as he has stated that the appellant and deceased along-with their children used to live

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separately from him. In the statement under Section 313 Cr.P.C., the appellant has failed to explain as to how and in what circumstances his wife has died. The appellant has taken the false plea of alibi that he was sleeping in the Khalihan of Lahar Singh (PW-2), however, Lahar Singh (PW-2) has clearly stated that in the night the appellant came and informed him that smoke is coming out of his house then he reached to the spot along-with appellant early in the morning and, as such, the plea of alibi has not been established beyond doubt.

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24. Thus, it is quite established from the aforesaid discussion that the appellant’s father (PW-7) was living separately; death of the deceased was homicidal in nature as per the post-mortem report Ex.P-10 proved by Dr. Shashi Tirkey (PW-8) and on the date & time of offence, the appellant was present at the place of offence along-with his wife, as the appellant himself informed the incident to his neighbor Digamber Singh (PW-1) and then he reached to the spot along-with the appellant and saw the dead body of deceased in the morning on 11.12.2015 in the house of appellant, which the appellant has failed to explain in his statement under

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Section 313 of Cr.P.C. as to how and in what circumstances his wife died and further in the statement under Section 313 of Cr.P.C. the appellant has taken a false plea of alibi, which is an additional circumstance against him. Apart from that, as per the statement of Kanti Singh (PW-6), sister of the deceased, motive has also been found proved.

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25. In view of the above, we are of the considered opinion that the trial Court has rightly held that it is the appellant who is the author of the crime, which is correct finding of fact based on evidence available on record and accordingly, the appeal is dismissed.

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

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Ashok

Ambikeshwar Singh v. State Of Chhattisgarh

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What is this about?

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Ambikeshwar Singh v. State Of Chhattisgarh

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