Mangluram Mourya Vs State Of Chhattisgarh

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Page 1 of 20 IN Criminal Appeal No.1622 of 2017

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 1622 of 20 17

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[Arising out of judgment dated 23.08.2017, passed in Sessions Case No.37 of 2017 (State of Chhattisgarh v. Mangluram Mourya), by the 3^rd Additional Sessions Judge, Bastar-Jagdalpur (C.G.)]

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Mangluram Mourya, Son of Anturam Mourya, aged about 45 years, Resident of Bursundi, Pidsigudapara, Chowki Bastar, Police Station Kotwali, Jagdalpur, District Bastar (Chhattisgarh)

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---- Appellant (In Jail)

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Versus

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State of Chhattisgarh, through the Station House Officer, Police Station Kotwali, Jagdalpur, District Bastar (Chhattisgarh), Civil and Revenue District Jagdalpur (Bastar)

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	----Respondent
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For Appellant	: Ms. Fouzia Mirza, Senior Advocate/ appointed through CG High Court Legal Services Committee assisted by Mr. Suresh Jain, Adv.
For Respondent -----------------------------	: Mr. Ashish Shukla, Addl. A.G. and 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 S. Agrawal

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Judgment on Board (20.06.2023)

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Sanjay K. Agrawal, J

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(1) Invoking criminal appellate jurisdiction of this Court, the sole appellant herein has preferred this criminal appeal under Section 374(2) of Cr.P.C., calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 23.08.2017, passed by 3^rd Additional Sessions Judge, Bastar (Jagdalpur) in Sessions Case No.37 of 2017,

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whereby he has been convicted and sentenced as under:

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Conviction	Sentence
U/s. 302 of IPC	Imprisonment for life.
U/s. 201 of IPC	Simple imprisonment for 01 years.

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[Both the sentences are directed to run concurrently]

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(2) The case of the prosecution, in short, is that on 12.02.2017, in the night at about 10:00 PM, at Village Bursundi, in his own house, the accused-appellant assaulted his wife, namely, Kanakderi, and two daughters, namely, Ku. Sarita and Ku. Baso (hereinafter referred to as the “deceased persons”) by means of ‘tangiya’ (axe), due to which, all the deceased persons suffered grievous injuries and died and, further, in order to screen himself from the legal punishment of the aforesaid crime, burnt the deadbodies of the deceased persons and, thereby, said to have committed offences under Sections 302 & 201 of IPC.

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(3) It is further case of the prosecution that on the date of incident, in the morning at about 11:00 AM, the appellant and his wife- Kanakderi (deceased) went to Sonarpal Bazar via Navagaon on bicycle, and from where, after consuming liquor, they went to Village Dhnora and, after staying at Village Dhanora for some time, they returned back to their house. In the house, their four daughters, namely, Ku. Sarita (deceased), Ku. Baso (deceased), Ku. Babli (PW-03) and Ku. Gudiya (PW-05) were also present. In the night, after having dinner, the appellant kicked Ku. Babli (PW-03) and Ku. Gudiya (PW-05) out of the house, pursuant to which, they

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went to their grandfather’s, namely, Anturam’s, house for sleeping and, thereafter, quarrel took place between the appellant and his wife- Kanakderi (deceased) on the issue of Kanakderi (deceased) having relationship with Jagbandhu (PW-08) other than her marriage, in which, the appellant assaulted Kanakderi (deceased) by means of axe. When the aforesaid incident was witnessed by Ku. Sarita (deceased) and Ku. Baso (deceased), the appellant further assaulted them by means of axe. On account of said assault made by the appellant on deceased persons, they suffered grievous injuries and died on the spot and appellant slept in the night by closing the doors. Thereafter, in the morning, the appellant, in order to screen himself from legal punishment of the said crime, firstly wrapped the dead-bodies of deceased persons by clothes, poured kerosene oil and set them ablaze and, when the same was seen by nephew of the appellant, namely, Mahesh (PW06), he made hue and cry and appellant ran away from the spot armed with axe.

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(4) Thereafter, when the matter was reported to the police by Sarpanch of the village, namely, Narayan Kashyap (PW-02), FIR (Ex.P/01 & Ex.P/32) was registered against the appellant and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/03, P/20 & P/22 and inquest proceedings were conducted vide Ex.P/04, P/19 & P/21. ‘Nazari Naksha’ and ‘panchnama’ were also prepared vide Ex.P/10

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& Ex.P/06 respectively. Merg intimations were also recorded vide Ex.P/16 to Ex.P/18. The dead-bodies of deceased persons were sent for postmortem examination, which was conducted by Dr. Ravindra Kumar (PW-12). As per PM report (Ex.P/13) of deceasedKanakderi, her cause of death has been opined to be due to stab injury on neck and nature of death is homicidal. As per PM report of deceased- Ku. Sarita (Ex.P/12), it has been opined that her cause of death is due to injury on her neck and nature of death is homicidal, whereas, according to PM report of deceased- Ku. Baso (Ex.P/14), it has been opined that her cause of death is internal hemorrhage due to injury on her head and nature of death is homicidal. The appellant-accused was arrested vide Ex.P/09 and his memorandum statement was recorded vide Ex.P/07. Pursuant to the memorandum statement of the appellant, weapon of the offence i.e. axe and one shirt were seized vide Ex.P/08. Further, from the place of incident, plain soil, blood stained soil, blood stained carpet, bottle with smell of kerosene and burnt mattress were seized vide Ex.P/05. The aforesaid seized articles were sent for chemical examination and in the FSL report (Ex.P/30), it has been opined that stains of human blood were found on the axe seized pursuant to the memorandum statement of the appellant. After statements of witnesses were recorded and due investigation, the police filed charge-sheet against the appellant in the competent criminal court having jurisdiction and, thereafter, the case was

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committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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(5) The prosecution in order to prove its case examined as many as 14 witnesses and exhibited 32 documents, whereas the appellant-accused in support of his defence, though not examined any witness, but exhibited 01 document i.e. statement of Deepak Das (Ex.D/01).

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(6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence under Sections 302 & 201 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

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(7) Ms. Fouzia Mirza, learned Senior counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Sections 302 & 201 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. She further submits that there is no direct evidence available against the appellant and case of the prosecution is based on circumstantial evidence. The circumstances relied upon by the learned trial Court in Para-34 of the impugned judgment are based on surmises and conjunctures

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and there is no material available on record to connect the appellant herein with the aforesaid offences. Hence, the present appeal deserves to be allowed and the appellant is liable to be acquitted of the said charges on basis of benefit of doubt.

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(8) Per-contra , learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of various prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Sections 302 & 201 of IPC. Thus, the present appeal deserves to be dismissed.

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(9) 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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(10) The first and foremost question is as to whether the death of the deceased persons was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem reports (Ex.P/12 to Ex.P/14), wherein it has been opined that cause of death of deceased persons is injury on their vital organs (i.e. neck, head etc.) and nature of death is homicidal, which is duly proved by the statement of Dr. Ravindra Kumar (PW12). Accordingly, taking into consideration the postmortem reports (Ex.P/12 to Ex.P/14) and the statement of Dr. Ravindra Kumar

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(PW-12), who has conducted the postmortem of the dead-bodies of the deceased persons, we are of the considered opinion that the death of the deceased persons is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

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(11) Now, the next question would be whether the accusedappellant herein is the author of the crime in question, which the learned trial Court has answered in affirmative on the basis of aforesaid incriminating circumstances as culled out in Para-34 of the impugned judgment and same reads as under:

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“ 1- ?kVuk fnukad dks ?kj esa dsoy e`frdkx.k vkSj vkjksih gh FksA

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2- v- lk- 6 egs’k dks vkjksih ?kj esa ?kqlus ugha fn;kA

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3- v- lk- 3 ccyh ,oa v- lk- 5 xqfM+;k dks ?kVuk jkf= dks vkjksih ?kj ls Hkxk fn;k FkkA

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4- lqcg efrdkx.k dks er voLFkk esa ik;k x;kA xn~nk ,oa e`frdk&x.k ds diM+s v/ktys ik;k x;kA mUgas ?kkrd pksV dkfjr fd;k x;k FkkA

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5- vkjksih ogka ij mifLFkr FkkA

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6- vkjksih us bl ckjs esa iqfyl esa ;k fdlh ds ikl dksbZ f’kdk;r ugha fd;k gS fd efrdkx.k dh eR;q dSls gq;h FkhA

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7- vkjksih ds eseksjsaMe ij Vafx;k ,oa mlds diM+s cjken fd;k x;k] ftl ij [kwu ds /kCcs ik;s x;s gSA”

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(12) Before proceeding further, it is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs.

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State of Maharashtra1 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as

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

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(13) We shall now consider the above-mentioned incriminating

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1 (1984) 4 SCC 116

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circumstances in view of the above-quoted principles of law laid down by their Lordships of the Supreme Court as also in light of the evidence available on record, in order to ascertain whether the appellant herein has rightly be held guilty for offence in question by the learned trial Court.

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(14) In the case at hand, according to the case of the prosecution, on the date of offence, the appellant alongwith his wife- Kanakderi (deceased) and four children, namely, Ku. Sarita (deceased), Ku. Baso (deceased), Ku. Babli (PW-03) and Ku. Gudiya (PW-05) all were residing in one house and, in the night, after having dinner, the appellant has kicked his two daughters- Ku. Babli (PW-03) and Ku. Gudiya (PW-05) out of the house, because of which, they were compelled to stay in their grand-father’s house. Moreover, a careful reading of the statements of Toma (PW-01) [mother of the appellant], Babli (PW-03), Gudiya (PW-05) [daughters of the appellant], Mahesh (PW-06) [nephew of the appellant] and Anturam (PW-11) [father of the appellant] would show that on the date of offence, the appellant has kicked his two daughters- Ku. Babli (PW-03) and Ku. Gudiya (PW-05) out of the house and, thereafter, when quarrel took place between the appellant and his wife- Kanakderi (deceased), he assaulted his wife by axe, due to which, she suffered grievous injuries and died and, since, his remaining two daughters, namely, Ku. Sarita (aged about 08 years) and Ku. Baso (aged about 05 years) were present in the house who

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have seen the aforesaid incident, the appellant has also assaulted both of them by means of axe, due to which, they both suffered grievous injuries and died. Mahesh (PW-06) in his statement before the Court has clearly stated that when he was trying to enter into the house of the appellant, he was not allowed to enter and he has seen the dead-bodies of the deceased persons in the house of the appellant. As such, it is quite established that on the date and time of the offence, the appellant alongwith three deceased persons were the only inmates who were present in the house. Furthermore, as per PM reports of the deceased persons (Ex.P/12 to P/14), it has clearly been opined that the cause of death of the deceased persons is injury on their vital organs (head, neck etc.) and nature of their death is homicidal. As such, it was imperative on the part of the appellant to explain as to how and in what circumstances his wife and daughters (deceased persons) suffered grievous injuries and died in his house, which he explained to fail and consequently the learned trial Court invoked Section 106 of the Indian Evidence Act, 1872. Therefore, the question would be whether the learned trial Court has rightly invoked Section 106 under the facts and circumstance of the present case ?

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(15) In the matter of Balvir Singh v. State of Uttarakhand2 , their

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Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the Evidence Act, have held that

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2 2023 SCC OnLine SC 1261

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Section 106 has to be applied in criminal cases with care and caution and held in paragraphs 41 to 48 as under:-

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“41. Thus, from the aforesaid decisions of this Court, it is evident that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106 of the Evidence Act.

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

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43. Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to 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 reason-

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able doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams:

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

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44. To recapitulate the foregoing : What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is therefore for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to 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

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outlines of Criminal Law, 17th Edn. 1958.

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45. But Section 106 has no application to cases where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happened to be present when it took place. From the illustrations appended to the section, it is clear that an intention not apparent from the character and circumstances of the act must be established as especially within the knowledge of the person whose act is in question and the fact that a person found travelling without a ticket was possessed of a ticket at a stage prior in point of time to his being found without one, must be especially within the knowledge of the traveler himself:see Section 106 of the Indian Evidence Act, illustrations (a) and (b).

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46. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence which if believed by the court would convince them of the accused's guilt beyond a reasonable doubt, the accused is in a position where he should go forward with counter-vailing evidence if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might have been

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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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(16) Similarly, In the matter of Anees v. The State Govt. of NCT3 , their Lordships of the Supreme Court, reviewing its earlier 3 2024 SCC Online SC 757

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decision on the point of Section 106 of the Evidence Act, have held in paragraphs 47 to 55 as under:-

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“ 47. But Section 106 of the Evidence Act has no application to cases where the fact in question, having regard to its nature, is such as to be capable of being known not only to the accused but also to others, if they happened to be present when it took place. The intention underlying the act or conduct of any individual is seldom a matter which can be conclusively established; it is indeed only known to the person in whose mind the intention is conceived. Therefore, if the prosecution has established that the character and circumstance of an act suggest that it was done with a particular intention, then under illustration (a) to this section, it may be assumed that he had that intention, unless he proves the contrary.

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48. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence, which if believed by the court, would convince them of the accused's guilt beyond a reasonable doubt, the accused, if in a position, should go forward with counter-vailing evidence, if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might arise therefrom. Although not legally required to produce evidence on his own

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behalf, the accused may, therefore, as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution [See: Balvir Singh v. State of Uttarakhand , 2023 SCC OnLine 1261]

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

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49. The Latin expression prima facie means “at first sight”, “at first view”, or “based on first impression”. According to Webster’s Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the case or charges against the defendant. If they cannot present prima facie evidence, the initial claim may be dismissed without any need for a response by other parties.

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50. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding guilt of the accused.

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

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

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“ 36. In this context we may profitably utilize the legal principle embodied in Section 106 of the Evidence Act which reads as follows: “When any

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fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

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

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(Emphasis supplied)

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

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“24. Even otherwise, in our view, this is a case where Section 106 of the Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and then a chhura-blow was given on the chest. Thus chhura-blow was given after Bijoy Chaudhary had said “he is still alive and should be killed”. The appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the appellants. The appellants have given no explanation as to what they did after they took away the body. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the court, there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but

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the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. We, therefore, see no substance in this submission of Mr. Mishra. ”

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(Emphasis supplied)

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

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

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(17) Reverting to the facts of the present case in light of the abovestated principles of law laid down by their Lordships of the

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Supreme Court, it is quite vivid that as per the statements of Toma (PW-01), Babli (PW-03), Gudiya (PW-05), Mahesh (PW-06) and Anturam (PW-11), on the date and time of the offence, the appellant and the deceased persons were the only persons/inmates who were present in the house of the appellant and according to marg intimation (Ex.P/16 to P/18), the deadbodies of the deceased persons were found in the house of the appellant, which fact has also been seen and reiterated by Mahesh (PW-06) in his statement before the Court, therefore, the appellant was required to explain as to how and in what circumstances his wife and daughters (deceased persons) suffered grievous injuries and died in his house, as the said fact was only and only in the special knowledge of the appellant, which he miserably failed to explain. As such, in light of the decision of the Supreme Court in Balvir Singh (supra) and Anees (supra), the learned trial Court has rightly invoked Section 106 of the Indian Evidence Act, 1872 in the present case to convict the appellant herein for the offence of murder of the deceased persons. Furthermore, the conduct of the appellant in kicking his daughters- Ku. Babli (PW-03) and Ku. Gudiya (PW-05) out of the house also demostrates his motive to commit murder of his wife (deceased), as he quarreled with his wife (deceased) on the issue of her relationship with Jagbandhu (PW08) other than marriage, therefore, on the said ground also the learned trial Court has rightly held the appellant guilty for the

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Page 20 of 20 IN

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Criminal Appeal No.1622 of 2017

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offences in question, more particularly when, pursuant to the memorandum statement of the appellant recorded vide Ex.P/07, weapon of the offence i.e. axe alongwith one shirt have been seized, in which, as per FSL report (Ex.P/30) stains of human blood and blood were found respectively.

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(18) In view of the aforesaid discussion, we are of the opinion that in the present case, 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), therefore, it can safely be concluded that it is only and only the present appellant who has committed murder of the deceased persons, for which, the learned trial Court has rightly convicted and sentenced him for the offences under Sections 302 & 201 of IPC. Accordingly, we do no find any illegality and perversity in the findings recorded by the learned trial Court in the impugned order dated 23.08.2017 which warrants interference of this Court and, therefore, the same is hereby affirmed/upheld.

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(19) Consequently, this criminal appeal is dismissed .

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

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s@if

Mangluram Mourya v. State Of Chhattisgarh

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What is this about?

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Mangluram Mourya v. State Of Chhattisgarh

Case brief

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What the court decided

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