Allowed

Rohit Lal v. State of Chhattisgarh

Chhattisgarh HC20 Jun 2024CRA/660/2018

Case brief

AI extract

What is this about?

In this murder appeal, the High Court acquitted the accused-appellant of attempting to invoke Section 106 of the Evidence Act to establish guilt. The court held that prosecution failed to lead direct evidence, as the deceased was not present with the accused, and acquitted him of murder charges under Section 302 IPC.

What did the court decide?

Impugned judgment of conviction and sentence set aside; appellant acquitted and set at liberty forthwith.

Rohit Lal Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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CRA No. 660 of 2018

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 660 of 2018

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Rohit Lal S/o Late Ramkumar aged about 25 years, R/o Village Davansara (Siwari Para), P.S. Jhilmili District Surajpur (CG).

---- Appellant

(In jail)

Versus

State Of Chhattisgarh Through Station House Officer, Police Station, Jhilmili, District Surajpur (CG)

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---- Respondent

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For Appellant : Shri Varun Sharma, Advocate For State/Respondent : Shri Afroj Khan, Panel Lawyer

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay S. Agrawal

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Judgment On Board

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(21.06.2024)

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Per Sanjay S. Agrawal, J

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1 . This appeal has been preferred by the accused-appellant under Section 374(2) of the Code of Criminal Procedure Code, 1973 (hereinafter referred to as ‘the Cr.P.C.’), questioning the legality and propriety of the judgment of conviction and order of sentence dated 13.04.2018 passed by the learned 2^nd Additional Sessions Judge, Surajpur, District Surajpur (CG) in Sessions

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CRA No. 660 of 2018

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Trial No.14/2018, whereby, the appellant has been convicted for commission of murder of his father-Ramkumar, punishable under Section 302 IPC and sentenced him to rigorous imprisonment for life and fine amount of Rs.50/-, in default of payment of fine, to undergo further rigorous imprisonment for additional 03 months.

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2 . Briefly stated the case of the prosecution is that on 16.09.2017 at village Davansara, Police Station, Jhilmili, District Surajpur (CG), the appellant- Rohit Lal, who is son of the deceased- Ramkumar, assaulted him with the aid of spade ( Kudali/Fawda ), owing to which, he died. A merg intimation (Ex. P-15) was lodged by the appellant himself on the next day morning, i.e. on 17.09.2017 at 8.45 AM, submitting, inter alia, that some unknown person has caused grievous injuries to his father, as a result of which, he died. Based upon the said information, an FIR (Ex.P-16) was registered by the Police Station, Jhilmili, in connection with Crime No.141/2017 against an unknown person for the offence punishable under Section 302 IPC. Inquest (Ex.P-2) of the dead body was conducted by Dr. B.C. Painkra (PW-9), who opined the cause of death to be sudden which has been occurred on account of excessive internal injuries and accordingly, it was found to be homicidal in nature. During investigation, the weapon (spade) ( Kudali/

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Fawda ), alleged to have been used for the commission of the alleged crime, was recovered from the house of the appellant vide seizure memo (Ex.P-5) on 19.09.2017 at 11.30 AM, based upon his disclosure statement (Ex.P-3) which was recorded on 19.09.2017 at 10.00 hrs. in presence of two witnesses, namely, Anant Ram (PW-1) and Budhdev (PW-2). The alleged weapon was sent for its chemical examination, along with other seized articles, like slippers of the deceased and blood stained soil, which was collected from the spot on 17.09.2017 vide (Ex.P-4), and according to the FSL report (Ex. P-19), human blood was found on the alleged weapon seized from the appellant. The appellant was, therefore, arrested on 19.09.2017 and after recording the statements of the prosecution witnesses, the Investigating Officer has charge-sheeted the appellant for the commission of murder of his father, while furnishing his final report on 11.12.2017 before the Judicial Magistrate First Class, Surajpur, who in turn, in exercise of the powers provided under Section 209 Cr.P.C., has committed the matter for its trial before the learned 2^nd Additional Sessions Judge, Surajpur.

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3 . The appellant has denied the charge so framed and claimed to be tried.

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4 . In order to bring home the guilt of the accused/appellant, prosecution has examined as many as 12 witnesses and

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exhibited 21 documents, while none was examined by the appellant in his defence.

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5 . After considering the evidence led by the prosecution, it was observed by the trial Court that since the appellant and his mother were at home along with the deceased and as they failed to offer any explanation required to be made under Section 106 of the Indian Evidence Act, 1872, therefore, while observing as such, the appellant has been held to be the author of the alleged crime. In consequence, he has been convicted under Section 302 IPC and sentenced as mentioned herein above.

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6 . Being aggrieved with the aforesaid judgment of conviction and order of sentence, the appellant has preferred this appeal.

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7 . Shri Varun Sharma, learned counsel appearing for the appellant submits that the finding of the trial Court holding the appellant guilty for commission of the alleged crime for having failed to offer his explanation under Section 106 of the Indian Evidence Act is apparently contrary to law. While inviting attention towards the statement of the deceased’s wife, namely, Smt. Meena (PW-7), it is submitted that on the fateful day and time, the appellant alone was not with his father, as his mother was also there and the father was not sleeping with them, therefore, convicting the appellant while invoking the said

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provision is apparently contrary to the materials available on record. The conviction of the appellant, is therefore, liable to be set aside. In support, he placed his reliance upon the principles laid down by the Supreme Court in the matter of Anees Vs. State Govt. of NCT, reported in 2024 SCC OnLine SC 757 .

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8 . On the other hand, Shri Afroj Khan learned counsel appearing for the respondent/State has supported the impugned judgment of conviction and order of sentence as passed by the trial Court.

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9 . We have heard learned counsel for the parties and perused the entire record.

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10. The questions, which arise for determination in this appeal are, as to whether the cause of death of the deceased was homicidal in nature ? and, whether the appellant was the author of the alleged crime as held by the trial Court while taking recourse to the provisions prescribed under Section 106 of the Indian Evidence Act ?

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11. It appears from perusal of the record that the autopsy of the dead body of the deceased was conducted by Dr. B.C. Painkra (PW-9), who in turn, after noticing the injuries caused to him, has opined that it occurred due to excessive internal injuries and accordingly, it was found to be homicidal in nature.

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After due consideration of the said report (Ex.P-11), duly supported by Dr. B.C. Painkra (PW-9), the learned trial Court has rightly arrived at a conclusion that the cause of death of the deceased was homicidal in nature and, we, accordingly, affirm the same.

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12. It is now to be seen whether the finding of the Court below holding the appellant guilty for the commission of alleged crime by taking recourse to the provisions provided under Section 106 of the Indian Evidence Act could be held to be sustainable in the eye of law ?

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13. In order to ascertain the aforesaid question, it is necessary to examine the evidence led by the prosecution.

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14. Smt. Meena (PW-7), who is the widow of the deceased and the mother of the appellant has stated in her evidence that on the fateful day, i.e., on 16.09.2017, she was sleeping in her old house and her said son (appellant) was also sleeping in the old house, while her husband was sleeping in the Varandah of the new house, which is adjacent to her old house. It was deposed further that on the next day morning, she has seen her husband dead and upon her shouting, the other of her relatives gathered there. She has, thus, not supported the prosecution story and others of her relatives, like Shivkumar (PW-4), Ramdev

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(PW-8) and Gayanti (PW-10), have also not supported the prosecution version.

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15. Anant Ram (PW-1) and Budhdev (PW-2), who were the attesting witnesses of the disclosure statement (Ex.P-3) made by the appellant, based upon which, the alleged weapon (spade) was recovered from the house of the appellant vide seizure memo (Ex.P-5), have however, stated that the alleged weapon was not recovered in their presence. That apart, when the alleged weapon (spade) was recovered vide seizure memo (Ex.P5), no blood was, however, found therein, although as per the FSL report (Ex.P-19), it was found to be the human blood. Be that as it may, although the human blood was shown to be found there as per the said report (Ex.P-19), but in absence of its origin and in absence of proof of its blood group to be that of the appellant, it is difficult to hold the appellant guilty for commission of the alleged crime. At this juncture, it is to be seen the principles laid down by the Supreme Court in the matter of

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Balwan Singh vs. State of Chhattisgarh and Another, reported in (2019) 7 SCC 781 , wherein, it has been held at paragraph 24 as under:-

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“24…………… ...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

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weapons and tabbal, and such recovery does not help the case of the prosecution.”

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16. Besides, as observed herein above, from perusal of the evidence of the deceased’s wife, Smt. Meena (PW-7), the deceased was found to be sleeping on the fateful day at the Varandah of the new house, which is adjacent to her old house, where she and her son, the appellant, were sleeping. It is, thus, evident that the deceased was not there with the appellant at the relevant point of time. Therefore, under such circumstances, it cannot be said that what was actually happened on the fateful day and time, was within the knowledge of the appellant alone, so as to take the recourse of Section 106 of the Indian Evidence Act. Pertinently to be noted here further that, even the trial Court has not found that the appellant alone was with his deceased father, yet the appellant has been held liable for commission of the alleged crime while applying the said provision.

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17. It is to be noted that the provision prescribed under Section 106 of the Indian Evidence Act has been enacted to meet certain exceptional cases in which it would be impossible or extremely difficult for the prosecution to prove the fact which is especially within the knowledge of the accused and the knowledge of that fact is not available to the prosecution. The said provision, however, cannot be utilized to cast the burden upon the accused

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to prove his innocence by relieving the prosecution from its burden of proof as the prosecution has to stand on its own footings and, cannot derive any strength or support from the weakness of defence.

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18. The aforesaid observation is fortified by the principles laid down by the Supreme Court in the matter of S hambu Nath Mehra vs. State of Ajmer , reported in 1956 SCC Online SC 27 (AIR 1956 SC 404) , wherein it has been held at paragraph 11, which reads as under:-

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“11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience.

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The word "especially" stresses that it means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.” ……………..

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19. Recently, the Supreme Court in the matter of Anees Vs. State Govt. of NCT (supra), has considered the provisions

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prescribed under Section 106 of the Indian Evidence Act and held at paragraphs 47 to 52 and 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

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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 Mir Mohammad (supra), wherein this Court has observed in paras 36 and 37

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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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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.

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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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20. Considering the facts and circumstances of the case in the

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light of the principles laid down by the Supreme Court in the above referred matters, the conviction of the appellant as held by the trial Court, cannot be held to be sustainable in the eye of law.

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21. Consequently, the appeal is allowed and, the impugned judgment of conviction and order of sentence dated 13.04.2018 passed by the 2 nd Additional Sessions Judge, Surajpur, District Surajpur (CG) in S.T. No.14/2018 is hereby set aside. The appellant is acquitted of the charge framed under Section 302 IPC. He shall be set at liberty forthwith, if his detention is not required in any other case.

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

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

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sunita

Rohit Lal v. State of Chhattisgarh

Case brief

What is this about?

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Rohit Lal v. State of Chhattisgarh

Case brief

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