Rajendra Shrivas Vs State of Chhattisgarh

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2024:CGHC:31632-DB

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Digitally
signed by
ASHOK
ASHOK SAHU
SAHU Date:
2024.08.22
14:30:41
+0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 200 of 2018

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{Arising out of judgment dated 23.12.2017 passed in Sessions Trial No.23/2016 by the learned Additional Judge Dongargarh of First Additional Sessions Judge Rajnandgaon}

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Rajendra Shrivas, S/o. Banshilal Shrivas, Aged About 35 Years, R/o. Village Jarve Madanvarani, Police Station Urga, District Korba, Chhattisgarh.

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... Appellant

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versus

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State Of Chhattisgarh, Through Police Station Dongargarh, District Rajnandgaon, Chhattisgarh.

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... Respondent

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For Appellant : Mr. Tarun Dansena, Advocate For Respondent : Mr. Vivek Mishra, 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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(21.08.2024)

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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 23.12.2017 passed by learned Additional Judge Dongargarh of First Additional Sessions Judge, Rajnandgaon, in Sessions Trial No.23/2016, 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.2000/- in default of payment of fine, additional rigorous imprisonment for 1 year.

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2 . Case of the prosecution, in short, is that on 13.06.2016 at 7:30 A.M., the appellant strangulated Sadhna Bai (now deceased) to whom he was allegedly residing otherwise than marriage and thereby committed the offence. Madhusharan Singh (PW-3) reported the matter to the police, pursuant to which, Merg Intimation was registered vide Ex.P-4, FIR was registered vide Ex.P-21, Inquest was conducted vide Ex.P-3 and dead body of deceased Sadhna Bai was subjected to post-mortem, which was conducted by Dr. S.K.Choudhary (PW-11), who proved the post-mortem report Ex.P-19, according to which, cause of death was stated to be asphyxia due to throttling and death was homicidal in nature. Pursuant to memorandum statement of the

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appellant Ex.P-13, ornaments of the deceased were recovered but it was not subjected to identification proceeding. 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 13 witnesses and exhibited 24 documents and the appellant-accused in support of his defence has examined only one witness DW-1 and exhibited the 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 Section 302 of I.P.C. and sentenced to undergo life imprisonment, against which the present appeal has been preferred.

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5 . Mr. Tarun Dansena, learned counsel for the appellant would submit that the trial Court is absolutely unjustified in convicting the appellant by invoking Section 106 of the Indian Evidence Act and furthermore the recovered

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ornaments allegedly belongs to deceased were not subjected to identification that it was belonging to the deceased and in that view of the matter, the appellant is entitled for acquittal on the ground of benefit of doubt and the appeal deserves to be allowed.

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6 . On the other hand, Mr. Vivek Mishra, learned State counsel would submit that the conviction of appellant for offence under Section 302 of I.P.C. is well merited as the prosecution has been able to bring home the offence beyond reasonable doubt 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 herein-above and went through the records with utmost circumspection.

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8 . The first question for consideration as to whether the death of deceased Sadhna Bai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-19, proved by Dr. S.K.Choudhary (PW-11), 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

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perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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9 . Now, the question is whether the trial court has rightly invoked Section 106 of the Indian Evidence Act to base conviction of the appellant, as dead body of deceased was found inside the house of the appellant ?

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10. At this stage, it would be appropriate to quote Section 106 of the Indian Evidence Act, which 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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11. The said 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 Act, the main point to be established by prosecution is that the accused persons were in such a

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position that they could have special knowledge of the fact concerned.

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12. In the matter of Balvir Singh v. State of Uttarakhand1 their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the Indian 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 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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1 2023 SCC OnLine SC 1261

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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 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

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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 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 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 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

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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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13. Similarly, In the matter of Anees v. The State Govt. of

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NCT2 , their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the Indian 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,

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2 2024 SCC Online SC 757

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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 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 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

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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 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

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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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14. Recently, in the matter of Manharan Rajwade v. State of

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Chhattisgarh3 their Lordships of the Supreme Court on the point of Section 106 of the Indian Evidence Act have held in paragraph 7 as under:-

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3 2024 INSC 560

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“7. For invoking Section 106 of the Evidence Act, the prosecution ought to have discharged the burden on it by adducing cogent evidence to prove the appellant’s presence at the relevant time in his house. In this case, going by the evidence of PW-1, the deceased had already died before 5:00 p.m., and the said witness stated that the appellant came back home at 7:00 p.m. There is no evidence to prove the theory of the last seen together. Therefore, the prosecution has no discharged the burden on it to prove that the appellant was last seen together with the deceased wife. Thus, Section 106 of the Evidence Act cannot be invoked to shift the burden on the appellant.”

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15. Reverting to the facts of the present case in light of the aforesaid principles of law, it is quite vivid that, as per the prosecution case, appellant and his wife were residing in the house of Madhusharan Singh (PW-3) and it is also not in dispute as per the statement of appellant Rajendra Shrivas (DW-1) that the appellant was already married with one Sunita Shrivas. However, Madhusharan Singh (PW-3) landlord has stated that the appellant was residing alongwith his wife. Similarly, Shashi Soni (PW-2) has also stated that the appellant was residing along-with his wife, but the dead body of deceased Sadhna Bai was found in the house of appellant and the appellant was absconding. None of the prosecution witness has stated that on the date and time of offence, the appellant was seen along-with deceased Sadhna Bai in the house in question. As such, it has not been established that appellant was residing on the date and time

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of offence along-with deceased Sadhna Bai and merely because the house in question was allegedly taken on rent by the appellant, it cannot be established that the appellant was residing along-with deceased. More particularly, the landlord- Madhusharan Singh (PW-3) and Shashi Soni (PW-2) in their court statement have stated that the appellant was residing along-with his wife and appellant’s wife is Sunita Shrivas, as such, it could not be established by the prosecution that the appellant and deceased both were alone in the house on the date and time of offence and thereafter the dead body of deceased was recovered.

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16. The next incriminating piece of evidence is that from the possession of appellant, the ornaments of deceased were recovered but in para 38 of the impugned judgment, the trial Court itself has recorded a finding that it was not subjected to any identification proceeding and in that view of the matter, the recovery of ornaments from appellant is of no use to the prosecution in absence of valid identification and therefore, the trial Court is absolutely unjustified in convicting the appellant for offence in question and, as such, he is entitled for acquittal on the basis of benefit of doubt.

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17. In view of the above, the impugned judgment of conviction and order of sentence dated 23.12.2017 is set aside. The

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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. Accordingly, the appellant is directed to be released forthwith from jail, unless he is required in any other offence.

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18. In the result, the appeal is allowed.

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

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

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Ashok

Rajendra Shrivas v. State of Chhattisgarh

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Rajendra Shrivas v. State of Chhattisgarh

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