Shekhram Kaushik Vs State of Chhattisgarh

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 355 of 2023

Shekhram Kaushik S/o Ramcharan Kaushik Aged About 25 Years R/o Village Gochhiya, Police Station Kawardha, District - Kabirdham Chhattisgarh. Present Address - New Changorabhatha, Near Shitla Mandir Talab Raipur, District Raipur Chhattisgarh.

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---- Appellant

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Versus

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

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---- Respondent

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(Cause Title taken from Case Information System)

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For Appellant	: Mr. Dharmesh Shrivastava, Advocate.
For Respondent/State	: Mr. R.S. Marhas, Additional Advocate General.
Date of Hearing	04.04.2024
Date of Judgment	: 18.04.2024

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Hon'ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Ravindra Kumar Agrawal, Judge

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C.A.V. Judgment

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Per Ramesh Sinha, Chief Justice

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1. The appellant has filed this appeal under Section 374(2) of Cr.P.C. questioning the impugned judgment dated 31.01.2023 passed by the learned Additional Sessions Judge, Kabirdham (Kawardha) in Session Trial No. 53/2019, by which the learned Additional Sessions Judge, while acquitting six other accused persons, has convicted and

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sentenced the appellant as under:

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Conviction under Section	Sentence (Rigorous imprisonment)	Fine	In default of payment of fine additional rigorous imprisonment
302 IPC	Imprisonment for life	Rs. 500/-	1 month

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201 IPC	03 years	Rs. 500/-	1 month

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All the sentences have been directed to run concurrently.

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2. Case of the prosecution, in short, is that on 12.07.2019 a dead body of a female was found near the field at Hathidob, District- Kabirdham. On the left wrist of the dead body, a tattoo being 'K.K.Y' written was found by which she was identified by her relatives to be that of Karuna Yadav who was aged about 20- 25 years. On an intimation being given by Chitram Sahu (PW-1), who is the Sarpanch of the village, the Police of Police Station, Kabirdham, registered a Dehati Merg bearing No. 00/ 2019 (Exhibit P/2) under Section 174 of Cr.P.C. was registered. A Dehati Nalishi was also recorded by the police (Exhibit P/1). Spot Panchanama (Exhibit P/4) was also prepared in presence of witnesses Chitram Sahu (PW-1) and Harichand Sahu (PW-2). Inquest report (Exhibit P/6) was prepared and the body was sent for postmortem.

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3. On the basis of the Dehati Nalishi, FIR (Exhibit P/41) bearing Crime No. 324/2019 was registered for the offences under Section 302 and 201 of the IPC on 12.07.2019 at 16:20 hours.

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4. After investigation, the Police filed the charge-sheet against 07 accused persons namely Shekhram Kaushik i.e. the appellant herein, Yashwant @ Ashwan, Mithlesh Baghel, Luvkush Kaushik, Valmiki Kaushik, Sushil Bai and Sukrit Bai for the offences under Sections 302, 301, 120-B and Section 34 of the IPC.

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5. Accordingly, Sessions Trial No. 53/2019 was registered and the learned Additional Sessions Judge, Kabirdham, framed charges against the accused persons for the offences under Sections 302/149, 201/149 and 120(B)/149 of IPC on 03.12.2019. The accused persons abjured the guilt and prayed for trial.

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6. Amongst others, the prosecution has exhibited the following

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documents in support of its case:

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Dehati Nalsi (Exhibit P/1)

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Dehati Merg Intimation(Exhibit P/2)

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Crime Details Form (Exhibit P/3)

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Spot Panchnama (Exhibit P/4)

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Summons U/s 175 of CrPC (Exhibit P/5)

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Inquest Report (Exhibit P/6)

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Property Seizure Memo (Exhibit P/7)

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Statement of Hori Lal (Exhibit P/8)

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Panchnama (Exhibit P/9)

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Statement of Chitram Sahu (Exhibit P/9)

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Memorandum (Exhibit P/10)

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Property Seizure Memo (Exhibit P/11)

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Memorandum (Exhibit P/12)

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Property Seizure Memo (Exhibit P/13 and 14)

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Memorandum (Exhibit P/15)

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Property Seizure Memo (Exhibit 16 to 23)

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Marriage Certificate (Exhibit 24)

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Property Seizure Memo (Exhibit 24)

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Notice under Section 160 of CrPC (Exhibit P/25 and Exhibit D/1)

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Memorandum (Exhibit P/26)

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Spot Map (Exhibit P/26)

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Memo for query report (Exhibit P/27)

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Report with regard to the Slipper (Exhibit P/28)

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Applicant for P.M. Report (Exhibit P/28)

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Query Report (Exhibit P/29)

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P.M.Report (Exhibit P/29)

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Query Report of clothes (Exhibit P/30)

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Memo for query of seized articles (Exhibit P/30)

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Query report (Exhibit P/31)

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Query report (Exhibit P/31)

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Query report (Exhibit P/32)

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Memo to Nodal Officer regarding providing of 65B Certificate (Exhibit P/32)

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Memo for query report and query report (Exhibit P/33 and 33A)

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Customer Application Form of Lavkush Kaushik (Exhibit P/33)

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Customer Application Form of Shekram Kaushik (Exhibit P/34)

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Customer Application Form of Balmiki Kaushik (Exhibit P/35)

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Call details of Lavkush Kaushik (Exhibit P/36)

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Call details of Shekram Kaushik (Exhibit P/37)

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Call details of Balmiki Kaushik (Exhibit P/38)

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Certificate under Section 65B Evidence Act (Exhibit P/39)

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Covering letter to Superintendent of Police (Exhibit P/40)

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First Information Report (Exhibit P/41)

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Identification Panchnama (Exhibit P/42)

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Statement of Bhupendra Yadav (Exhibit P/43)

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Statement of Laxman Yadav (Exhibit P/44)

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Identification Panchnama (Exhibit P/45)

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Merg Intimation (Exhibit P/46)

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Spot Panchnama (Exhibit P/47)

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Arrest/ Court Surrender Memo (Exhibit 48 to Exhibit 55)

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Memo for F.S.L. Report (Exhibit P/56)

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F.S.L. Report (Exhibit P/57)

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Memo regarding providing of Spot Map (Exhibit P/58)

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Examination report of exhibits (Exhibit P/59)

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F.S.L. Report (Exhibit P/60)

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7. In order to bring home the offence, prosecution examined as many as 20 witnesses namely, Chitram Sahu (PW-1) who is the Sarpanch of the village Singhanpuri, Harichand Sahu (PW-2), Horiram Sahu (PW3), Parvati Bai (PW-4), Hiraram Sahu (PW-5) who are all resident of village Khairbana Kala, Rajesh Kumar Dhankar (PW-6) who had accompanied the father of the deceased while lodging the missing report, Anita Saiyyam (PW-7) who is the Constable who had seized the Kidney, clothes, blood and other body organs of the deceased (Exhibit P/4), Uttam Yadav (PW-8) who had identified the dead body of the deceased in the mortuary, Sandip Pandey (PW-9) who is the Patwari who prepared the Spot Map (Exhibit P/26), Dr. Heena Ahmad (PW-10), who is the Doctor who had given the query report of various

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articles sent by the Police, Uma Shankar Sahu (PW-11) who is the Constable who had brought 10 sealed packets received from Medical College Hospital, Raipur and handed over to Assistant Sub Inspector, Kaushal Sahu, Ashok Kumar Yadav (PW-12) who is the Constable who had taken the dead body to the Hospital for postmortem, Dr. Arun Kumar Jaswani (PW-13) who is the Doctor who had conducted the postmortem (Exhibit P/29) and had also given query report of the seized articles vide Exhibit P/30, Sanjeev Nema (PW-14) who is the Nodal Officer of Reliance Mobile, Raipur who had provided the call details and the consumer details of various SIM numbers, Sanjay Kumar Yadav (PW-15) who is the Sub Inspector who registered the numbered FIR , Bhupendra Yadav (PW-16) who is the brother in law ( Jija ) of the deceased, Ram Yadav (PW-17) who is the father of the deceased, Laxman Yadav (PW-18) who is the Uncle ( Chacha ) of the deceased, Brijesh Kushwaha (PW-19) who is the Investigating Officer, and Sushil Malik (PW-20) who is the Inspector who had also conducted some part of the investigation.

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8. The statement of the accused were recorded under section 313 CrPC on 10.01.2023. They had expressed their ignorance about most of the questions, however, some of them were denied as well. They stated that they were all innocent and were falsely implicated.

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9. The learned Additional Sessions Judge acquitted all the accused persons except the appellant-Shekhram Kaushik and convicted him for the offences as detailed in the opening paragraph of this judgment.

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10. Mr. Dharmesh Shrivastava, learned counsel for the appellant submits that the appellant has been falsely implicated in this case. The dead body was found in the open village and there is no material is available on record to connect the appellant with the commission of the crime. Most of the prosecution witnesses have turned hostile and

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neither they have supported memorandum statement of the accused nor the seizure have been proved in this case. He further submits that all the other accused person have been acquitted of the charges on the same set of evidence. He further submits that there is no eye witness in this case and the entire case is based on circumstantial evidence but the learned trial court erred in appreciating the statement of the accused that he was not present at the spot and he was falsely implicated in crime in question only on the basis of memorandum statement of the other accused persons, who have been acquitted by the learned trial Court. The learned trial Court has passed the impugned order only on presumption holding that though the prosecution failed to establish the case against other co-accused persons beyond reasonable doubts but the burden of proof was upon the appellant that his wife is missing but he did not lodge any report and as such, the appellant was held liable for her death. The memorandum statement of the appellant was recorded and only a stone from the place of incident was seized on the basis of memorandum of the present appellant which is not a corroborative piece of evidence. Even the prosecution has not been able to establish the role of the appellant as to in what manner he had caused death of the deceased. The dead body was highly decomposed and in the cross-examination the Investigating Officer accepted that socalled tattoo (Godna) was not seen by him and it was not mentioned in the inquest Panchnama and the doctor had opined for DNA Test but DNA Test was not conducted, therefore, it could not be said with certainty that the deceased was the missing wife of the appellant.

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11. In support of his contentions, learned counsel for the appellant/convict has relied on the decisions rendered by the Supreme Court in Javed Shaukat Ali Quereshi v. State of Gujarat {(2023) 9 SCC 164}, Satye Singh & another v. State of Uttarakhand {(2022) 5 SCC

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438}, Nagendra Sah v. State of Bihar {(2021) 10 SCC 725} Shivaji Chintappa Patil v. State of Maharashtra {(2021) 5 SCC 626}, and the decisions of this High Court in Santosh Kashyap v. State of Chhattisgarh {Cr.A. No. 867/2017, decided on 07.02.2024} and Jiteshwari Bai v. State of Chhattisgarh {2016 SCC OnLine Chh 2149}.

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12. On the other hand, Mr. R.S.Marhas, learned Additional Advocate General appearing for the State/respondents submits that the learned trial Court has committed no error by convicting the appellant which is based on findings arrived after proper appreciation of the statement of the witnesses and the evidence available on record. The order of the learned trial Court is just and proper and does not warrant any interference.

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13. 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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14. It is an admitted position in this case that the appellant and the deceased had performed love marriage and they both belonged to different castes.

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15. The father of the deceased, Ram Yadav (PW-17) has stated before the learned trial Court that she had identified her daughter by seeing the Tatoo 'K.Y.' on the hand of the deceased and he is witness to identification Panchnama (Exhibit P/42). However, he clearly stated that her daughter was murdered by some persons but not by the appellants and other acquitted accused persons. In the cross examination, he states that how the deceased died, he is not aware. Similarly, Laxman Yadav (PW-18) who is the uncle of the deceased also states that he does not know the accused persons and he was not aware as to how the deceased died. However, he admits that he

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had identified the deceased by seeing the tatoo. He has further stated that he had not given any statement to the police that the accused persons had conspired and committed murder of the deceased by strangulating and causing injuries with stones and knife.

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16. On the one hand, the learned trial Court, disbelieving the evidence and statement of the witnesses has acquitted other six accused persons giving them the benefit of doubt, but has convicted the appellant on the ground that conduct of the appellant was such that even after having gone missing, the appellant did not made any complaint before the police especially when the appellant and the deceased were living together as husband and wife and if the dead body of the deceased was found, it would have been within the knowledge of the appellant.

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17. In the case in hand, it is not clear as to on which date the deceased went missing from the house of the appellant. One aspect of the matter is that when the appellant and the deceased were having love affair between them and they had also performed marriage, there was no reason as to why he would cause murder of her own wife when the appellant was well aware that the deceased belonged to different caste and also that how their own societies would react to such marriage. The reason that on mere asking of the family members of the appellant, the appellant would have committed murder of his wife, appears to be mere assumption and has no foundation. There is no evidence on record that the family of the appellant were outcasted or excommunicated from their society which would have compelled them to take such a drastic measure of causing murder of the deceased.

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18. Even the exact date of death could also not be ascertained because of the decomposed condition of the dead body and the Doctor had opined that the time since death was 3 to 7 days. Nobody has seen

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the appellant and the deceased leaving the house together as it is only on the basis of the memorandum of the accused that the prosecution has tried to portray the sequence of events that the appellant took the deceased with him and thereafter, she was done to death. No doubt it is a case of homicidal death, but there is nothing on record to connect the appellant with the commission of the crime. Merely on the basis of provision contained in Section 106 of the Indian Evidence Act, 1872, the appellant having not explained his position, cannot be convicted with the aid of Section 106. The question for consideration would be, whether Section 106 of the Evidence Act would be applicable or not?

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19. Section 106 of the Indian Evidence Act, 1872, states as under: -

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“ 106. Burden of proving fact especially within knowledge — When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

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20. This provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned.

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21. As such, in our considered opinion, the prosecution has failed to discharge its primary burden of proving its case beyond reasonable doubt and merely on the basis of proving the death to be homicidal in nature and motive for offence, Section 106 of the Evidence Act cannot

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be invoked and the appellant cannot be held guilty of the offence under Section 302 and 201 of the IPC. In a case of circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all.

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22. It is well settled that in a case which rests on circumstantial evidence, law postulates two fold requirements:-

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(i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt.

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(ii) All the circumstances must be consistent pointing only towards the guilt of the accused.

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23. In the case of Sharad Birdhichand Sarda Vs. State of

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Maharashtra {(1984) 4 SCC 116}, the Supreme Court has enunciated the aforesaid principle as under:-

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“The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the Accused and inconsistent with his innocence”.

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24. It is further well-settled that in a case based on circumstantial evidence the Courts ought to have a conscientious approach and conviction ought to be recorded only in case in which all the links of the chain are complete and pointing to the guilt of the accused. Each link unless connected together form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused.

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25. In the case in hand, the prosecution witnesses namely Chitram Sahu (PW-1), Harichand Sahu (PW-2), Horiram Sahu (PW-3), Parvati Sahu

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(PW-4), Bhupendra Yadav (PW-16), Ram Yadav (PW-17), Laxman Yadav (PW-18) have turned hostile and not supported the prosecution case. It cannot be said with certainity that it was the appellant alone who had committed the murder of the deceased.

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26. In cases where the evidence is purely circumstantial in nature, the circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and such circumstances must be consistent and must form a complete chain unerringly point to the guilt of the accused and the chain of circumstances must be established by the prosecution. Thus the conviction of the appellant by the trial court is not sustainable in the eyes of law. The trial court committed an error in recording the conviction and sentence of the appellant. It is not even a case of last seen together as there is no particular date as to when the deceased went missing and when she was last seen together with the accused/ appellant.

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27. Resultantly, the impugned judgment of conviction and order of sentence passed by the learned trial Court is set aside and the appeal stands allowed.

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28. The appellant- Shekhram Kaushik is in jail. He is directed to be released forthwith unless wanted in any other case. However, keeping in view the provision of Section 437-A of the Cr.P.C., the accused/ appellant is directed to furnish a personal bond in terms for a sum of Rs. 25,000/- with two reliable sureties in the like amount before the trial Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Supreme Court.

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29. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.

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Sd/- Sd/(Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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Amit

Shekhram Kaushik v. State of Chhattisgarh

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Shekhram Kaushik v. State of Chhattisgarh

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