Allowed

Videshi Bhoi v. State of Chhattisgarh

Chhattisgarh HC10 Jun 2024CRA/665/2018

Case brief

AI extract

What is this about?

Criminal Appeal filed to challenge life imprisonment for murder. High Court of Chhattisgarh held prosecution failed to prove case beyond reasonable doubt. Judgment set aside conviction, acquitted appellant based on benefit of doubt, and ordered immediate release from jail.

What did the court decide?

Impugned judgment of conviction and sentence set aside/appelant acquitted and ordered to be released from jail forthwith.

Videshi Bhoi Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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CRA No. 665 of 2018

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 665 of 2018

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(Arising out of judgment dated 28.03.2018 passed in Sessions Trial No.26/2017 by the Additional Sessions Judge, Saraipali, District Mahasamund, Chhattisgarh)

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Videshi Bhoi S/o Nandlal Bhoi, aged about 35 years, R/o Village Bijemal, Police Station Sankara, District-Mahasamund, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh through the Police Station Basna, District- Mahasamund, Chhattisgarh.

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---- Respondent

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For Appellant :- Mr. Vivek Kumar Shrivastava, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee. For Respondent-State :- Mr. Vivek Mishra, Panel Lawyer.

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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Agrawal

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Judgment On Board

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(11.06.2024)

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Sanjay K. Agrawal, J

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Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of CrPC has been filed by the appellant herein calling in question the legality, validity and correctness of the judgment of conviction and

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order of sentence dated 28.03.2018 passed by the Additional Sessions Judge, Saraipali, District Mahasamund, Chhattisgarh in Sessions Trial No.26/2017 whereby the appellant has been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of ₹ 500/-; in default of payment of fine to undergo additional rigorous imprisonment 3 months.

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The case of the prosecution, in a nutshell, is that on 25.01.2017 at about 5:00 pm at village Bairdih, Police Station Basna, District Mahasamund, Chhattisgarh, appellant assaulted his wife Dulna Bai (now deceased) by sharp edged weapon i.e. parsul (पं�सु�ल/पंरसु�ल) by which she suffered grievous injuries and died. The said incident is said to have been witnessed by Suraj Bhoi (PW-10), son of the appellant and the deceased, who informed about the said incident to Ramila (PW1), aunt (बु�आ) of the appellant, that appellant was assaulting his mother by phukani (फु�कनी�), thereafter, she (PW-1) went to the spot along with PW-10, where she saw the deceased lying on the ground and the appellant was present on the spot and also saw weapon of offence (पं�सु�ल/पंरसु�ल) on the spot. Thereafter, she (PW-1) reported the matter to the police pursuant to which merg intimation and FIR were registered vide Exs. P/14 & P/15, respectively. Nazari naksha was prepared vide Ex. P/10.

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Inquest proceedings (Ex.P/2) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/8) proved by Dr. S. R. Sidar (PW-11) cause of death was cardio respiratory failure due to excessive external bleeding resulting from neck injury and homicidal in nature. Articles were seized from the spot vide Exs. P/3 to 5 & P/13. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/6) on the weapons of offence i.e. articles C (फु�कनी�) & D (पं�सु�ल/पंरसु�ल) human blood was found. Weapons of offence were seized on 26.01.2017 and articles were received by Laboratory (FSL), Raipur, on 23.02.2017.

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After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence.

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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 14 witnesses and exhibited 21 documents whereas, the appellant in defence has neither examined any witness nor exhibited any document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against

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him in the evidence brought on record, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

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Mr. Vivek Kumar Shrivastava, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant for aforesaid offence as the prosecution has failed to prove the offence against the appellant beyond reasonable doubt and he has falsely been implicated in crime in question. He also submits that Suraj Bhoi (PW-10), son of the appellant and the deceased, is not a reliable eye witness as in accordance with postmortem report (Ex.P/8) injuries (incised wounds) were inflicted by sharp edged weapon, whereas, as per statement of Suraj Bhoi (PW10) the incised wound is said to have been caused by the phukni (फु�कनी�). He further submits that the sharp edged weapon (पं�सु�ल/पंरसु�ल) has not been seized pursuant to memorandum statement of the appellant and it was recovered

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CRA No. 665 of 2018

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from the spot vide Ex.P/4. He further submits that FSL report (Ex.P/6) is also not reliable as the weapon of offence was seized on 26.01.2017 and it was received by the Laboratory, Raipur, on 23.02.2017 and there is no evidence available on record that the said articles were in safe custody between 26.01.2017 to 22.02.2017. It is further submitted that the trial Court has absolutely unjustified in invoking Section 106 of the Indian Evidence Act, 1872 (for brevity “the IEA”) to convict the appellant in the case of eye witness in the light of the decisions rendered by the Supreme Court in the matters of Murlidhar and others v. State of Rajasthan1 & Balvir Singh v. State of Uttarakhand2 . As such, the conviction of the appellant is liable to be set aside and the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed.

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On the other hand, Mr. Vivek Mishra, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. He further submits that the Suraj Bhoi (PW-10) is the reliable eye witness and, therefore, the appellant has rightly been convicted for the offence in question. Thus, the instant appeal deserves to be dismissed.

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1 AIR 2005 SC 2345

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2 2023 SCC OnLine SC 1261

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CRA No. 665 of 2018

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

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Now, the first question is, whether the death of the deceased was homicidal in nature?

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In this regard the trial Court has been answered by the trial Court in affirmative that the death of Dulna (deceased) was homicidal in nature relying upon the postmortem report (Ex.P/8) proved by Dr. S.R. Sidar (PW-11) which, in our considered opinion, is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the trial Court.

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Now, the question for consideration would be whether the appellant has assaulted the deceased?

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The case of the prosecution is based on the testimony of eye witness Suraj Bhoi (PW-10), son of the appellant and the deceased, who is said to be present on the place of incident. In paragraph no. 3 of his statement before the Court, he has stated that when appellant was assaulting his mother (deceased) by phukni (फु�कनी�), he was trying to stop him

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(appellant) then appellant asked him to go outside and immediately, he (PW-10) went outside and called Ramila (PW1) by that time his mother had already died. However, phukni has been recovered from the spot vide Ex.P/4 on 26.01.2017 and as per statement of Dr. S.R. Sidar (PW-11), who proved the postmortem report (Ex.P/8) of the deceased, all the injuries/incised wounds could have only been caused by sharp edged weapon and the sharp edged weapon is parsul (पं�सु�ल/पंरसु�ल), but as per the statement of Suraj Bhoi (PW-10) his mother (deceased) was assaulted by phukni and not by parsul, as such, statement of Suraj Bhoi (PW-10) that his mother was assaulted by phukni is not supported by the medical evidence. Furthermore, phukni (फु�कनी�) and parsul (पं�सु�ल/पंरसु�ल) were not seized pursuant to memorandum statement of the appellant, even those articles were seized from the spot vide Ex.P/4. The evidentiary value of the articles which have been seized without any memorandum statement of the accused, has been discussed and laid down by their Lordships of the Supreme Court recently in the matter of Boby v. State of Kerala 3 wherein following the principle of law laid down in Chandran v. The State of Tamil Nadu 4 it has been held as under:-

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3 2023 LiveLaw (SC) 50

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4 (1978) 4 SCC 90

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“21. It could thus be seen that Section 27 of the Evidence Act requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the said fact. The information as to past user, or the past history, of the object produced is not related to its discovery. The said view has been consistently followed by this Court in a catena of cases.

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22. This Court, in the case of Chandran v. The State of Tamil Nadu (supra) had an occasion to consider the evidence of recovery of incriminating articles in the absence of record of the statement of accused No.1. In the said case also, no statement of accused No.1 was recorded under Section 27 of the Evidence Act leading to the recovery of jewels. The Court found that the Sessions Judge as well as the High Court had erred in holding that the jewels were recovered at the instance of accused No.1 therein in pursuance to the confessional statement (Ex.P-27) recorded before PW-34 therein. It will be relevant to refer to the following observations of this Court in the said case :

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“36. …... Thus the fact remains that no confessional statement of A-1 causing the recovery of these jewels was proved under Section 27, Evidence Act.....”

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26. This Court has elaborately considered as to how the law expects the IO to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. In the present case, leave aside the recovery panchnama being in accordance with the aforesaid requirement, there is no statement of Boby (accused No. 3/appellant herein) recorded under Section 27 of the Evidence Act. We are, therefore, of the considered view that the prosecution has failed to prove the circumstance that the dead body of the deceased was recovered at the instance of Boby (accused No. 3/appellant herein). ”

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Thus, the recovery of weapons of offence i.e. phukni (फु�कनी�) and parsul (पं�सु�ल/पंरसु�ल) cannot be said to be made at the instance of the appellant as it was not recovered pursuant to

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memorandum statement of the appellant herein and it was recovered from the spot vide Ex.P/4. In the light of the decision of the Supreme Court in the matters of Boby (supra) and Chandran (supra) it is of no use to the prosecution as the weapons of offence phukni (फु�कनी�) and parsul (पं�सु�ल/पंरसु�ल) have not been recovered at the instance of the appellant and, as such, we hereby reject this circumstance put forth by the prosecution against the appellant.

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The next piece of evidence is that the trial Court has relied upon the FSL report (Ex.P/6) to convict the appellant for the offence in question. As per FSL report (Ex.P/6) on the weapons of offence phukni (फु�कनी�) and parsul (पं�सु�ल/पंरसु�ल) human blood was found. However, the fact which has to be noticed that the weapons of offence were seized on 26.01.2017 and as per FSL report (Ex.P/6) in which itself it has been mentioned that the seized articles were received on 23.02.2017 and there is no evidence available on record which would show that seized articles were kept in safe custody from the date of seizure 26.01.2017 till 22.02.2017 and they have not been manipulated or fabricated. Hence, in absence of evidence of safe custody, possibility of manipulation and fabrication cannot be ruled out with the said articles.

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Furthermore, the trial Court has relied upon Section 106 of the IEA to convict the appellant for the offence in question. Now, the question is whether the trial court has rightly invoked Section 106 of the Evidence Act to convict the appellant in the case of eye witness?

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At this stage, it would be appropriate to quote Section 106 of the 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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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 position that they could have special knowledge of the fact concerned.

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In the matter of Murlidhar (supra), their Lordships of the Supreme Court have held that since the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and therefore, the principle in Section 106 of the Evidence Act could not apply and observed as under:-

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“22 . In our judgment, the High Court was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. As pointed out in Mir Mohammad Omar (supra) and Shambu Nath Mehra (supra), the rule in Section 106 of the Evidence Act would apply when the facts are “especially within the knowledge of the accused” and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, “especially within the knowledge of the accused”. In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the principle in Section 106 could not apply. On the other hand, the prosecution proceeded on the footing that there were eye-witnesses to the fact of murder. The prosecution took upon itself the burden of examining Babulal (PW-5) as eyewitness. Testimony of Ram Ratan (PW-7) and Isro (PW-10) shows that their agricultural land was situated in a close distance from the house of Khema Ram. As rightly pointed out by the High Court, it is highly unlikely and improbable that their kith and kin Ramlal would have been given beating resulting in his death by the accused-appellants while keeping lights of their house on and door of the room opened. It is also unlikely that the accused-appellants would have taken the risk of dragging Ramlal to the house of Khema Ram, which was situated in the vicinity of agricultural land and well of Isro (PW-10), the father of Ramlal.

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23. In the result, we are of the view that the prosecution having put forward a case that, what transpired after Ramlal was dragged away by the

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assailants was within the knowledge of witnesses, utterly failed in proving the said facts. Once this is established, it was not open for the High Court to have fallen back on the rule of burden of proof under Section 106 of the Evidence Act. In fact, as we notice, it was nowhere the case of the prosecution that Section 106 of the Evidence Act applied to the facts on record. The High Court seems to have brought it out on its own, but without any justification. We are, therefore, of the view that the conviction of Murlidhar, Chhaju Ram and Babu Lal s/o Chhaju Ram under Section 364, IPC is justified and liable to be confirmed, but their conviction under Section 302/34, IPC cannot be sustained and they are liable to be of the said charges. ”

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Recently, in the matter of Balvir Singh (supra) 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 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

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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 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

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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 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

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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 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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In view of the aforesaid principles of the law laid down by their Lordships of the Supreme Court in the matters of Murlidhar (supra) and Balvir Singh (supra) and the provisions contained in Section 106 of the IEA, the trial Court is absolutely

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unjustified in invoking Section 106 of the IEA in the case of presence of eye witness (PW-10) to convict the appellant for the offence in question.

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The next piece of evidence which is found proved by the trial Court is that the conduct of the appellant. The appellant was caught red handed by Raju (PW-3) which would be relevant fact under Section 8 of the IEA. Very recently, in the matter of Subramanya v. State of Karnataka 5 , the Supreme Court has clearly held that subsequent conduct of the accused may be relevant fact under Section 8 of the IEA, but it cannot form basis for conviction that too for offence of murder and observed in para 95 as under :-

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“95. In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.”

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In view of the aforesaid discussion, we are of the considered opinion that the prosecution has failed to discharge its primary burden of proving its case beyond reasonable doubt and, as such, the appellant is entitled for acquittal on the basis of

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5 2022 SCC OnLine SC 1400

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principles of benefit of doubt. Accordingly, t he impugned judgment dated 28.03.2018 passed by the trial Court convicting and sentencing the appellant for the offence under Section 302 of the IPC, is hereby set aside/quashed and the appellant is acquitted from the said offence on the basis of principles of benefit of doubt. Appellant is stated to be in jail since 26.01.2017, we direct that he be released from the jail forthwith, if not required in any other matter.

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This criminal appeal is allowed .

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be supplied to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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

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Ankit

Videshi Bhoi v. State of Chhattisgarh

Case brief

What is this about?

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Videshi Bhoi v. State of Chhattisgarh

Case brief

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