Allowed

Gajendra Nureti v. State of Chhattisgarh

Chhattisgarh HC14 Jul 2024CRA/719/2018

Case brief

AI extract

What is this about?

Husband convicted of murdering his wife by strangulation based solely on Section 106 of the Evidence Act because the body was found in his house. The High Court held the prosecution failed to prove he was present at the time of offence or that they were sole inmates, and that no Section 313 question covered these facts, entitling him to acquittal on benefit of doubt.

What the court decided

AI extract

Gajendra Nureti Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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Page 1 of 22

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(Cr. A. No. 719 of 2018)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRIMINAL APPEAL NO. 719 OF 2018

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(Arising out of Judgment dated 4.4.2018 passed by First Additional Sessions Judge, Balod, District Balod in Sessions Case No.6 of 2018)

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Gajendra Nureti, S/o Shri Heeralal Nureti, aged about 30 years, Caste Gond, R/o Singhola, Police Station Dondi, District Balod (C.G.)

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... Appellant(s)

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Versus

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State of Chhattisgarh, through: Station House Officer, Police Station Dondi, District Balod (C.G.)

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... Respondent(s)

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For Appellant For Respondent/State	:- :-	Ms. Sareena Khan, Advocate. Mr. H.A.P.S. Bhatia, Panel Lawyer.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board [15.07.2024]

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Sanjay K. Agrawal, J.

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1. The present criminal appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (in short, CrPC), has been preferred by the appellant, Gajendra Nureti, assailing the judgment dated 4.4.2018 passed by learned First Additional Sessions Judge, Balod (Trial

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Page 2 of 22

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(Cr. A. No. 719 of 2018)

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Court) in Sessions Case No.6/2018, by which the sole appellant herein has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (in short, IPC) and sentenced to undergo Life Imprisonment with fine of Rs.1000/- and in default of payment of fine amount, to suffer additional Three months’ Rigorous Imprisonment.

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2. Case of the prosecution, in brief, is that 19.9.2017 between 1:00 pm to 1:30 pm at Village Singhola within the jurisdiction of Police Station Dondi, District Balod, the appellant strangulated his wife, Lokeshwari Nureti (deceased), to death pressing her neck by his hands and sari , thereby committed the aforesaid offence.

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3. Further case of the prosecution is that on the date of offence when PW-2 Heeralal Nureti, father of the appellant, returned home from his work and asked for water, the appellant told him of the deceased consuming some medicine, on which he visited the paternal house of the deceased and took her sister to his home and thereafter he called the doctor who after examination declared the deceased dead.

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Page 3 of 22

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(Cr. A. No. 719 of 2018)

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4. On the report made by PW-2 Heeralal Nureti at Police Station Dondi, Merg Intimation and FIR were registered vide Exhibit P-4 and P-19 respectively. Sketch map of the place of incident was prepared vide Exhibit P-2. Inquest Panchnama was conducted vide Exhibit P-3 and the dead body of the deceased was subjected to post-mortem which was conducted by PW-6 Dr. Anurag Amit Rastogi firstly vide Exhibit P-14, which is a short post-mortem report, and thereafter vide Exhibit P-13A which is a detailed postmortem report in which cause of her death has been opined to be asphyxia due to strangulation resulted in cardio-respiratory arrest and the nature of her death to be homicidal. Memorandum Statement of the appellant was recorded vide Exhibit P-8 pursuant to which, a sari was seized vide Exhibit P-9. Some pieces of nails of the hands of the appellant were seized vide Exhibit P-20. Similarly, vide Exhibit 21, viscera of the deceased were seized in which no poison was found as per FSL report (Exhibit P-25).

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5. On completion of due investigation, the appellant was charge-sheeted before the concerned Magistrate who

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Page 4 of 22

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(Cr. A. No. 719 of 2018)

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took cognizance on the charge-sheet and the case, being exclusively triable by the Sessions Court, was committed to the court of Sessions for trial. The appellant appeared before the Trial Court where charge was framed against him under Section 302 of IPC to which he denied and claimed to be tried.

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6. During the course of trial, in order to prove its case, the prosecution examined as many as 9 witnesses as PW-1 to PW-9 and exhibited 28 documents vide Exhibits P-1 to P-28. A Compact Disc (CD) in which memorandum and seizure proceeding was recorded has been brought on record as Article ‘A’. After closure of the prosecution evidence, statement of the accused appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence of the prosecution, pleaded innocence and false implication. However, in defence, neither any witness has been examined nor any document has been relied on by the appellant.

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7. After conclusion of trial, the Trial Court, by impugned judgment dated 4.4.2018, on appreciation of oral and documentary evidence came on record, held the

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Page 5 of 22

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(Cr. A. No. 719 of 2018)

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appellant guilty of the offence punishable under Section 302 of IPC and accordingly convicted and sentenced him as mentioned in paragraph-1 of this judgment, which led to filing of the present appeal by the appellant calling in question the legality, validity and correctness of the impugned judgment passed by the Trial Court.

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8. Ms. Sareena Khan, learned counsel appearing for the appellant, would submit that Section 106 of the Indian Evidence Act, 1872 (in short, the Evidence Act) has wrongly been invoked by the Trial Court in convicting the appellant for the offence punishable under Section 302 of IPC which is not applicable in the instant case at all as there is no evidence available on record that on the date and time of offence the appellant and the deceased were last seen together in the house in question and that there is no question put to the appellant to explain in his 313 CrPC statement that he was present in his house when the dead body of the deceased was found in his house and as to how and under what circumstances she died in his house. The appellant as such is entitled to be acquitted of the said

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Page 6 of 22

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(Cr. A. No. 719 of 2018)

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charge on the basis of benefit of doubt and the appeal deserves to be allowed accordingly.

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9. Mr. H.A.P.S. Bhatia, learned Panel Lawyer appearing for the State, would however support the impugned judgment and submit that the prosecution has been able to prove the offence against the appellant beyond reasonable doubt and therefore the Trial Court is absolutely justified in convicting him for the offence punishable under Section 302 of IPC invoking Section 106 of the Evidence Act as he has failed to explain in his statement recorded under Section 313 of CrPC as to how and under what circumstances his wife (deceased) died in his house. The appellant as such does not deserve for acquittal even on the basis of benefit of doubt and the appeal is liable to be dismissed.

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10. We have heard learned counsel for parties, considered their rival submissions made herein-above and also perused the record carefully and thoroughly.

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11. The primary question, as to whether the death of deceased Lokeshwari Nureti was homicidal in nature, has been answered by the Trial Court in affirmative

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Page 7 of 22

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(Cr. A. No. 719 of 2018)

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relying upon the statement of PW-6 Dr. Anurag Amit Rastogi who firstly has conducted the short postmortem (Exhibit P-14) and thereafter the detailed post-mortem examination of the deceased as well vide Exhibit P-13A and has also proved the said postmortem reports in which cause of death of the deceased has been opined to be asphyxia due to strangulation and the nature of death his death has been opined to be homicidal, which, in our considered opinion, is correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. We, accordingly, affirm the said finding of the Trial Court, holding that the death of deceased Lokeshwari Nureti was homicidal in nature.

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12. As regards the next question, as to whether the appellant is author of the crime, in order to arrive at the finding of guilt of the appellant for commission of murder of his wife, deceased Lokeshwari Nureti, the Trial Court has invoked Section 106 of the Evidence Act holding that the dead body of the deceased was found in the house of the appellant and that the appellant has failed to explain in his statement

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Page 8 of 22

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(Cr. A. No. 719 of 2018)

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recorded under Section 313 of CrPC as to how and under what circumstances the deceased died in his house.

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13. Now, we will consider as to whether the Trial Court has rightly invoked Section 106 of the Evidence Act to convict the appellant and for which the prosecution has been able to discharge its primary burden of proving its case beyond reasonable doubt?

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14. It would be appropriate herein 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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15. The said provision states that when any fact is especially 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

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Page 9 of 22

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(Cr. A. No. 719 of 2018)

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the other side. To invoke Section 106 of the Evidence Act, the main point to be established by the 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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16. In the matter of Balvir Singh v. State of Uttarakand 1,

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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

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1 2023 SCC OnLine SC 1261

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Page 10 of 22

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(Cr. A. No. 719 of 2018)

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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 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

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Page 11 of 22

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(Cr. A. No. 719 of 2018)

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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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Page 12 of 22

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(Cr. A. No. 719 of 2018)

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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.

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Page 13 of 22

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(Cr. A. No. 719 of 2018)

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He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might have been rebutted. Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go 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

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Page 14 of 22

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(Cr. A. No. 719 of 2018)

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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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17. Similarly, in the matter of Anees v. The State Govt.

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of NCT 2, their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the Evidence Act, have held in paragraphs 47 to 55 as under:-

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“ 47. But Section 106 of the Evidence Act has no application to cases where the fact in question, 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

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2 2024 SCC Online SC 757

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Page 15 of 22

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(Cr. A. No. 719 of 2018)

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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 countervailing 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

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Page 16 of 22

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(Cr. A. No. 719 of 2018)

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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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Page 17 of 22

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(Cr. A. No. 719 of 2018)

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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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(Cr. A. No. 719 of 2018)

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“24. Even otherwise, in our view, this is a case where Section 106 of the Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and then a chhura-blow was given on the chest. Thus chhura-blow was given after Bijoy Chaudhary had said “he is still alive and should be killed”. The appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the appellants. The appellants have given no explanation as to what they did after they took away the body. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the court, there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a

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Page 19 of 22

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(Cr. A. No. 719 of 2018)

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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

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Page 20 of 22

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(Cr. A. No. 719 of 2018)

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such evidence, which it is capable of leading, having regard to the facts and circumstances of the case. ”

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18. Returning to the facts of the present case, it is quite clear that the appellant has been convicted by virtue of Section 106 of the Evidence Act holding that the dead body of the deceased was found in the house of the appellant on 19.9.2017 between 1:00 pm to 1:30 pm, but there is no evidence available on record to the extent that the appellant was present in his house on the date and time of offence. Though presence of the appellant in the house after the incident is established as per the statement of his father, PW-2 Heeralal Nureti, who, according to Merg Intimation (Exhibit P-5), had returned home at about 2:30 pm from his work and found the appellant in the house, but the fact that the appellant was present in the house at the time when the incident had occurred is not at all found established in view of the evidence which have come on record. Furthermore, there is no question put to the Appellant to explain in his 313 CrPC statement that the dead body of the deceased was found in his house and consequently as to how and under what

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Page 21 of 22

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(Cr. A. No. 719 of 2018)

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circumstances his wife died. Similarly, there is no question also has been asked to him to explain in his 313 CrPC statement that he and his wife (deceased) were the only inmates in the house when the dead body of the deceased was found in his house.

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19. Accordingly and in view of the aforesaid discussion and analysis of the evidence available on record and in light of the principles of law laid down by their Lordships of the Supreme Court in the above referred decisions, though the prosecution has been able to establish the nature of death of the deceased to be homicidal and the fact that dead body of the deceased was found in the house of the appellant, but the prosecution has failed to prove that on the date and time of offence it is the appellant and the deceased who were the only inmates present in the house of the appellant where the dead body of his wife, Lokeshwari Nureti, was found. The appellant as such is entitled for acquittal on the basis of principle of ‘benefit of doubt’ as the prosecution has miserably failed to discharge its primary burden of proving the offence for which the appellant has been charged so as to attract

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(Cr. A. No. 719 of 2018)

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Section 106 of the Evidence Act and hold him author of the crime.

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20. Resultantly, this criminal appeal is allowed . The conviction and sentence of the appellant for the offence punishable under Section 302 of IPC is hereby set-aside and he is acquitted of the said charge extending him the benefit of doubt. He is reported to be in jail. He be released from jail forthwith, if his detention is not required in connection with any other offence.

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21. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail be also supplied with a certified copy of this judgment for

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information and compliance, if any, at the earliest.

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

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sharad

Gajendra Nureti v. State of Chhattisgarh

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Gajendra Nureti v. State of Chhattisgarh

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