Rohit Kumar Dhruw Vs State of Chhattisgarh

¶1

1

¶2

2024:CGHC:43700-DB

¶3

ASHOK SAHU

¶4

Digitally signed by ASHOK SAHU Date: 2024.11.13 17:22:47 +0530

¶5

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶6

NAFR

¶7

CRA No. 182 of 2019

¶8

Rohit Kumar Dhruw, S/o. Late Bhulau Ram Dhruw, Aged About 27 Years, R/o. Near Shitla Mandir Tatibandh, Raipur, P.S. Aamanaka, District Raipur, Chhattisgarh.

¶9

versus

¶10

State Of Chhattisgarh, Through : Station House Officer, Police Station Aamanaka, District Raipur Chhattisgarh.

¶11

... Respondent

¶12

For Appellant : Mr. Ravindra Sharma, Advocate

¶13

For Respondent : Mr. Ashutosh Shukla, Panel Lawyer

¶14

(Division Bench)

¶15

Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal

¶16

Judgment on Board

¶17

(11.11.2024)

¶18

Sanjay K. Agrawal, J.

¶19

1 . This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned

¶20

2

¶21

judgment dated 02.01.2019 passed by learned Second Additional Sessions Judge, Raipur, District Raipur, in Sessions Trial No.212/2017, by which, the sole appellant herein has been convicted for offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.1000/- in default of payment of fine, additional rigorous imprisonment for 1 year.

¶22

2 . Case of the prosecution, in short, is that in the intervening night of 13.06.2017 to 14.06.2017 near Sheetla Mandir, Tatiband, Police Station Aamanaka, Raipur, the appellant assaulted her mother Sumitra Dhruw (now deceased) by iron-pan (तवा), suspecting that she played witchcraft and thereafter, burned the dead body; thereby, the offence has been committed. It is further case of the prosecution that the appellant himself had reported the matter to the police constable Santosh Sahu (PW-14), pursuant to which, FIR was registered vide Ex.P-10, merg intimation was registered vide Ex.P-11. Inquest proceedings were conducted vide Ex.P-7 and dead body of deceased Sumitra Dhruw was subjected to postmortem, which was conducted by Dr. Snigdha Jain (PW-12), who proved the postmortem report vide Ex.P-27, in which, cause of death was stated to be head injury and death was homicidal in nature. The mobile phone was seized vide Ex.P-19, which was owned by appellant and

¶23

3

¶24

the certificate (Ex.P-25) was also obtained along-with the call details vide Ex.P-1. The weapon of offence i.e. iron-pan and shirt of appellant were seized vide Exs.P-20 & P-19, respectively, which were sent for chemical examination along-with other seized articles to FSL and as per the FSL report (Ex.P-39), human blood of B group was found on the seized shirt & iron-pan. After due investigation, appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

¶25

3 . In order to bring home the offence, prosecution examined as many as 15 witnesses and exhibited 41 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

¶26

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

¶27

4

¶28

5 . Mr. Ravindra Sharma, learned counsel for the appellant, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt and further submits that the phone No.7999525140 was owned by the appellant is not proved and therefore, the alleged report made by the appellant, which was taken as extra judicial confession is not established. He would also submit that Section 106 of Indian Evidence Act would not attract as it has not been proved by the prosecution that the appellant and deceased both were used to live together in the house in question. He would further submit that though on the seized shirt & iron-pan, human blood of B group was found, but in absence of other corroborative piece of evidence, the appellant cannot be convicted for the offence that too for offence under Section 302 of I.P.C. As such, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed.

¶29

6 . Mr. Ashutosh Shukla, 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 aforesaid offence and, as such, the appeal deserves to be dismissed.

¶30

5

¶31

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

¶32

8 . The first question for consideration as to whether the death of deceased Sumitra was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-27) proved by Dr. Snigdha Jain (PW-12), according to which, cause of death was stated to be coma due to head injury and as per the statement of Dr. Snigdha Jain (PW-12) 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.

¶33

9 . The case of the prosecution is not based on direct evidence, it is based on circumstantial evidence. The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of 1

¶34

Sharad Birdhichand Sarda v. State of Maharashtra , which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 as

¶35

under: -

¶36

1 (1984) 4 SCC 116

¶37

6

¶38

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

¶39

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

¶40

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 v. State of Maharashtra² where the following observations were made:

¶41

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.

¶42

(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,

¶43

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

¶44

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

¶45

(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.”

¶46

2 (1973) 2 SCC 793

¶47

7

¶48

10. Now, the trial Court has culled out the following incriminating circumstances.

¶49

(i). That, the appellant is said to have given extra judicial confession to Police Constable- Santosh Sahu (PW-14) from phone No.7999525140 that he had committed murder of his mother and the said mobile phone was seized vide Ex.P-19 proved by the Investigating Officer- D.P.Sharma (PW-1) though the seizure witnesses Ashwani Dhruw (PW-8) and Bajrang Thakur (PW-9) both have turned hostile.

¶50

(ii). That, since the appellant and deceased both were residing in the house in question as shown in the Spot Map (Ex.P-15) proved by Patwari- Virendra Kumar Jha (PW-7), therefore, Section 106 of the Indian Evidence Act would be applicable.

¶51

(iii). That, on the seized shirt and iron-pan, human blood of B group has been found as per the FSL report (Ex.P-39).

¶52

11. Now, the first incriminating circumstance which has been found proved by the trial Court is recovery of mobile phone No.799925140 and the extra judicial confession given to Santosh Sahu (PW-14). It is the case of the prosecution that the appellant had made extra judicial confession to Santosh Sahu (PW-14) by his mobile phone containing SIM

¶53

8

¶54

No.799925140, which was seized on 14.06.2017 at Aamanaka, Raipur in presence of Ashwani Dhruw (PW-8) and Bajrang Thakur (PW-9) though both the seizure witnesses have turned hostile. Furthermore, the prosecution has not brought on record any evidence to hold that SIM No.7999525140, belongs to the appellant and the IMEI number of the said mobile phone has also not been proved. As such, it could not be proved that the said mobile phone actually belongs to the appellant or owned by the appellant. Furthermore, as per the statement of Santosh Sahu (PW-14) on 13.06.2017 at night 1:15 A.M., he received the phone call from the mobile No.7999525140 and the caller proclaimed himself as Chhota Bhai of Gond family and he has killed his mother. However, PW-14, in his statement before the Court, has not stated that the said caller was the appellant herein and even otherwise, he has stated that the caller has not informed his name. As such, there is no evidence on record that the appellant has called and informed to Santosh Sahu (PW-14) that he has killed his mother Sumitra Dhruw. Furthermore, the evidence of appellant that he had given extra judicial confession to Santosh Sahu (PW-14) on phone call through his mobile No.7999525140 is also not established as PW-14 has clearly admitted that the informant did not name himself to him and, therefore, the

¶55

9

¶56

prosecution has failed to establish this incriminating circumstance at all and we reject the said incriminating circumstance.

¶57

12. The second incriminating circumstance which has been found proved by the trial Court is that the appellant and the deceased both used to live together in the house in question and to base the conviction of the appellant the trial Court has invoked Section 106 of the Indian Evidence Act.

¶58

13. At this stage, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Anees v. The State Govt. of NCT3 and their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the Evidence Act, have held in paragraphs 47 to 55 as under:-

¶59

“ 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.

¶60

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

¶61

10

¶62

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

¶63

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

¶64

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

¶65

11

¶66

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.

¶67

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.

¶68

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.

¶69

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:

¶70

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

¶71

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

¶72

12

¶73

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.”

¶74

(Emphasis supplied)

¶75

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:

¶76

“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 the section

¶77

13

¶78

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. ”

¶79

(Emphasis supplied)

¶80

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.

¶81

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

¶82

14

¶83

capable of leading, having regard to the facts and circumstances of the case.”

¶84

14. Reverting to the facts of the case in light of principles of law laid down by their Lordships of the Supreme Court in abovestated judgment, it is quite vivid that the trial Court has invoked Section 106 of the Evidence Act to base the conviction of the appellant. However, Sulochana Netam (PW4), Priyanka Dhruw (PW-5), Ahilya Bai Dhruw (PW-6), Bajrang Thakur (PW-9) and Lata Dhruw (PW-11), all witnesses are related witnesses to the appellant and deceased, have not supported the case of prosecution and none of them has stated expressly that appellant and deceased both were residing together in the same house on the date and time of offence and even the Nazari Naksha (Ex.P-15) prepared by the Patwari (PW-7), only the place where the appellant has assaulted Sumitra has been mentioned as Position-1 and in Position-2, the appellant’s brother and sister-in-law (PW-6) were residing and there is no other evidence on record at all to hold that in the place shown in Ex.P-15, the appellant and his mother were residing together on the date and time of offence and on the next day, dead body was found. As such, the prosecution has failed to prove that the appellant and deceased were residing together on the date and time of offence at Position

¶85

15

¶86

No.1 as shown in Ex.P-15 and also in view of Anees (supra), the trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of I.P.C. by applying Section 106 of the Indian Evidence Act.

¶87

15. The last incriminating circumstance is that the trial Court has found proved that on the shirt and iron-pan, human blood of B group was found. It is not proved that the deceased was having blood group of B and more particularly only on the basis of FSL report (Ex.P-39), in absence of other corroborative piece of evidence, appellant could not be convicted that too for offence under Section 302 of the I.P.C. As such, the appellant is entitled for acquittal on the basis of benefit of doubt.

¶88

16. In view of the above discussion, we are unable to maintain the conviction of the appellant for offence under Section 302 of I.P.C. and, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt as the prosecution has failed to bring home the offence beyond reasonable doubt and also failed to complete the chain of incriminating circumstances in light of the decision of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra). Accordingly, the impugned judgment of conviction and order of sentence dated 02.01.2019 is hereby set aside.

¶89

16

¶90

The appellant stands acquitted giving him benefit of doubt from the charge framed against him for the offence punishable under Section 302 of Indian Penal Code. The appellant is in jail since 14.06.2017, he is directed to be released forthwith from jail, unless he is required in any other offence.

¶91

17. In the result, the appeal is allowed.

¶92

18. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence.

¶93

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

¶94

Ashok

Rohit Kumar Dhruw v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Rohit Kumar Dhruw v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Suresh Kumar Sahu Vs State of Chhattisgarh

Ashok Yadav Vs Smt. Mohani Sankhala

State of Chhattisgarh Vs Laxmi Sahu

Ramnarayan Gond Vs State of Chhattisgarh

Yogesh @ Lala Verma Vs State of Chhattisgarh

Bablu Kashyap Vs State of Chhattisgarh