Hemant Chelak Vs State of Chhattisgarh

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 562 of 20 18

[Arising out of judgment dated 23.03.2018, passed by the Additional Sessions Judge, Raipur (C.G.) in Sessions Case No.175 of 2017 (State of Chhattisgarh v. Hemant Chelak)]

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Hemant Chelak, Son of Jitendra Chelak, aged about 24 years, Resident of Muraithi, Police Station Mandir Hasaud, District Raipur (Chhattisgarh)

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---- Appellant (In Jail)

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Versus

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State of Chhattisgarh, through District Magistrate, Raipur, District Raipur (Chhattisgarh)

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---- Respondent

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For Appellant : Mr. Shailendra Dubey, Advocate For Respondent : Mr. Arvind Dubey, Government Advocate

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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay S. Agrawal

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Judgment on Board (24.06.2024)

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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 23.08.2018, passed by the Additional Sessions Judge, Raipur, in Sessions Case No.175 of 2017, whereby he has been convicted for offence under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.500/- and, in default of payment of fine amount, additional simple imprisonment

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for 02 months.

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(2) The case of the prosecution, in short, is that in the intervening night of 02-03.05.2017, at Village Muraithi within the ambit of Police Station Mandir Hasaud, District Raipur (CG), in his own house, the accused-appellant committed murder of his wife, namely, Annu Chelak (hereinafter referred to as the “deceased”) by strangulating her neck with the help of gamcha (towel) and, thereby, said to have committed offence under Section 302 of IPC.

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(3) It is further case of the prosecution that when father of the appellant, namely, Jitendra Chelak (PW-07) reported the matter to the police, merg intimation (Ex.P/15) and FIR (Ex.P/26) were registered and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/02 and inquest proceedings were conducted vide Ex.P/03. ‘Nazari Naksha’ and ‘panchnama’ were also prepared vide Ex.P/10 & Ex.P/11 respectively. The dead-body of deceased was sent for postmortem examination, which was conducted by Dr. Snigdha Jain (PW-16) and, as per PM report (Ex.P/18 & P/22), cause of death of the deceased has been opined due to compression of neck consistent with strangulation by ligature mark. The appellant-accused was arrested vide Ex.P/04 and his memorandum statement was recorded vide Ex.P/05. Pursuant to the memorandum statement of the appellant, pillow and gamcha (towel) were seized vide Ex.P/09. However, the aforesaid seized articles were not sent for chemical

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examination for the reasons best known to the prosecution. After statements of witnesses were recorded and completion of the investigation, the police filed charge-sheet against the appellant in the competent criminal court having jurisdiction and, thereafter, the case was 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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(4) The prosecution in order to prove its case examined as many as 17 witnesses and exhibited 28 documents, whereas the appellant-accused in support of his defence, though not examined any witness, but exhibited 05 documents.

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(5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence under Section 302 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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(6) Mr. Shailendra Dubey, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that there is no direct evidence available against the appellant and case of the

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prosecution is based on circumstantial evidence. The circumstances relied upon by the learned trial Court in Para-10 of the impugned judgment are based on surmises and conjunctures 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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(7) 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 Section 302 of IPC. Thus, the present appeal deserves to be dismissed.

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(8) 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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(9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/18 & Ex.P/22), wherein it has been opined that cause of death of the deceased is due to compression of neck consistent with strangulation by ligature mark, which is

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duly proved by the statement of Dr. Snigdha Jain (PW-15). Accordingly, taking into consideration the postmortem report (Ex.P/18 & Ex.P/22) and the statement of Dr. Snigdha Jain (PW15), who has conducted the postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased 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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(10) 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 following incriminating circumstances as culled out in Para-10 of the impugned judgment, which reads as under:

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“1- vkjksih dk vU; efgyk ls isze&laca/k gksus ds dkj.k mlds }kjk viuh iRuh ls vPNk crkZo ugha fd;k tkukA

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2- eR;q ds le; efrdk ds dejs ij vkjksih ds vfrfjDr vU; fdlh O;fDr dk mifLFkr ugha jgukA

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3- vkjksih ds fu’kkunsgh ij ?kVuk esa iz;qDr rfd;k ,oa xeNk dh tIrh fd;k tkukA

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4- vkjksih ,oa efrdk ds e/; okn&fookn gksrs jguk vkSj ?kVuk fnukad dks efrdk }kjk vkjksih ds fo:) Fkkus esa mDr laca/k esa f’kdk;r fd;k tkukA”

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(11) Before proceeding further, it is profitable here to note following five golden principles laid down by their Lordships of the

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Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra1 which constitute the ‘panchsheel’ of proof

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of a case based on circumstantial evidence and same read as 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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1 (1984) 4 SCC 116

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(12) We shall now consider the above-quoted incriminating circumstances, relied upon by the learned trial Court, 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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As regards incriminating circumstance No.1 & 4:

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(13) The first incriminating circumstance that has been relied upon by the learned trial Court is that since the appellant was having relationship with other women apart from his marriage, he used to ill-treat his wife (deceased) and, further, on the date of offence (i.e. 02.05.2017), the deceased lodged complaint/report before the police vide Ex.P/21C that the appellant has misbehaved with her. However, on the said complaint of the deceased vide Ex.P/21C, no offence/crime was registered by the police against the appellant, as no cognizable offence was made out. Therefore, same cannot be treated to be an incriminating circumstance against the appellant herein. Furthermore, there is no evidence available on record to show that the appellant was having relationship with other women apart from his marriage and, therefore, he used to ill-treat his wife (deceased). Indeed, Bhagwat Prasad Chelak (PW-01) [grand-father of the appellant] has stated before the Court that the relationship between the appellant and

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the deceased were cordial. As such, the said allegation also pales into insignificance and cannot be relied upon to hold the appellant guilty for having committed offence of murder of his wife (deceased). We hereby hold accordingly.

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As regards incriminating circumstance No.2:

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(14) The next incriminating that has been relied upon by the learned trial Court is that since on the date and time of the offence the appellant and the deceased were the only inmates in the room (house), as the appellant was sleeping in the same room where the deceased was sleeping, and the dead-body of the deceased was found lying in the said room, therefore, the appellant was required to explain as to how and in what manner his wife (deceased) suffered grievous injuries and died, which he failed to do and, consequently, the learned trial Court has invoked Section 106 of the Indian Evidence Act, 1872 (for short the “IE Act”) to convict the appellant herein for the offence in question. As such, the question would be whether the learned trial Court is justified in convicting the appellant herein by invoking Section 106 of the IE Act 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 Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the Evidence Act, have held that Section 106 has to be applied in criminal cases with care and

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2 2023 SCC OnLine SC 1261

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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 reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the

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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 outlines of Criminal Law, 17th Edn. 1958.

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45. But Section 106 has no application to cases

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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 rebutted. Although not legally required to produce evidence on his own behalf, the accused may

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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 decision on the point of Section 106 of the Evidence Act, have held

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3 2024 SCC Online SC 757

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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 behalf, the accused may, therefore, as a practical matter find it essential to go forward with proof. This does not

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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 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

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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 Supreme Court, it is quite vivid that as per the case of the

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prosecution the appellant was sleeping along with the deceased in one room, where the dead-body of the deceased was found lying by mother of the appellant, namely, Smt. Bhanti (not examined). However, a careful perusal of the statement of grand-father of the appellant, namely, Bhagwat Prasad Chelak (PW-01) would show that on the date of offence when the appellant returned from his work and after having dinner, at about 8-9 PM, he went on the terrace of the house and slept therein and rest of the family members were sleeping in their respective room, whereas the deceased was also sleeping in her room. Thereafter, in the morning, when the deceased did not wake up on her usual time, Smt. Bhanti (not examined) visited her room and found her lying dead. Bhagwat Prasad Chelak (PW-01) was subjected to some extent of cross-examination by the prosecution, but nothing could be extracted from him to hold that on the date of offence the appellant was sleeping along with the deceased in one room. Similarly, father of the appellant, namely, Jitendra Chelak (PW-07) has also stated that on the date of offence the appellant was sleeping on the terrace of the house, whereas the deceased was sleeping in her room and, further, during his cross-examination in Para-08, he has also stated that the appellant has informed him that the cooler situated in the room of the deceased was making noise, on account of which, appellant’s sleep was disturbed, therefore, he went on the terrace of the house for sleeping.

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Furthermore, in appellant’s statement recorded under Section 313 of CrPC, while answering Question No.02, as to whether on the date of offence, after having dinner, the deceased went to her room for sleeping and he (appellant) went on the terrace of the house for sleeping, he answered in affirmative.

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(18) At this stage, it has been contended on behalf of the respondent-State that as per the statement of Investigating Officer, namely, Y.D. Dhruv (PW-17) there was no terrace/roof in the house of the appellant and, therefore, the story of the defence that on the date of offence the appellant was sleeping on the terrace is doubtful and cannot be relied upon. However, in view of above statements made by Bhagwat Prasad Chelak (PW-01) and Jitendra Chelak (PW-07) that on the date of offence the appellant was sleeping on the terrace of the house and the deceased was sleeping in her room, the aforesaid objection putforth on behalf of the respondent-State is liable to and is accordingly rejected, more particularly, when the appellant himself has admitted the said fact of deceased sleeping in her room and the appellant on the terrace of the house in his statement recorded under Section 313 of CrPC. As such, is not established beyond reasonable doubt that the appellant was sleeping along with the deceased in one room on the date and time of the offence, indeed, it has clearly been established that on the date and time of the offence the appellant and the deceased were not the only inmates residing in the house, as it is

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apparent from the record that at the relevant point of time appellant’s grand-father- Bhagwat Prasad Chelak (PW-01), his father- Jitendra Chelak (PW-07), his mother- Smt. Bhanti (not examined) were also residing in the said house. Therefore, the appellant was not under any obligation to explain as to how and in what circumstances his wife (deceased) suffered grievous injuries and died in the house, as the said fact was not in his special knowledge. Consequently, in light of the decision of the Supreme Court in the matters of Balvir Singh (supra) and Anees (supra), the learned trial Court in absolutely unjustified in invoking Section 106 of the IE Act, under the facts and circumstances of the present case to convict the appellant for the offence of murder of his wife (deceased). We hereby hold accordingly.

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As regards incriminating circumstance No.03:

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(19) The next incriminating circumstance that has been relied upon by the learned trial Court is that pursuant to the memorandum statement of the appellant recorded vide Ex.P/05, one pillow and gamcha (towel) were seized vide Ex.P/09. However, the aforesaid seized articles have not been subjected to any chemical examination.

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(20) The Supreme Court in the matter of Balwan Singh vs. State

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of Chhattisgarh and another4 held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the

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4 (2019) 7 SCC 781

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prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood and held in Para-24 as under:

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“ 24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.”

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(21) Finally reverting to the facts of the present case in light of above principle of law laid down by their Lordships of the Supreme Court in the matter of Balwan Singh (supra), it is quite vivid that since there is no evidence available on record to show that any stains of human blood was found on the said pillow and gamcha (towel), which were seized pursuant to the memorandum statement of appellant, therefore, such a recovery is of no help to the prosecution that too when Rohit Devdas (PW-05), who is witness to said seizure and memorandum statement, has turned hostile in his statement before the Court. We hereby hold accordingly.

¶124

(22) In view of aforesaid discussion, we are unable to hold that the

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Criminal Appeal No.562 of 2018

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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), in absence of which, the learned trial Court is unjustified in convicting the appellant for offence in question, being the author of the crime, in light of the incriminating circumstances as culled out in Para-10 of the impugned judgment and same is liable to be set aside.

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(23) Accordingly, the conviction and sentence of the appellant for offence punishable under Section 302 of IPC, as imposed upon him by the learned trial Court, is hereby set aside. He is acquitted of the said charges on the basis of benefit of doubt. Since the appellant is in jail, we direct that he be released from jail forthwith, if not required in any other matter/crime.

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(24) This criminal appeal is allowed .

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(25) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any.

¶131

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

¶132

s@if

Hemant Chelak v. State of Chhattisgarh

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Hemant Chelak v. State of Chhattisgarh

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