Allowed

Sateram Kashyap v. State of Chhattisgarh

Chhattisgarh HC14 Jul 2024CRA/795/2018

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal against conviction for murder, destruction of evidence, and dishonest misappropriation. The bench held that Section 106 of the IE Act was wrongly invoked as the prosecution failed to prove the appellant was the sole inmate present with the deceased. The identification of jewelry was held defective due to procedural infirmities and the identification by non-

What did the court decide?

Appellant acquitted of charges under Sections 302, 201, and 404 IPC and directed to be released from jail forthwith.

Sateram Kashyap Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 795 of 20 18

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[Arising out of judgment dated 09.04.2018, passed by the Additional Judge, Katghora, to the Court of Additional Sessions Judge, Katghora, District Korba (C.G.) in Sessions Case No.18 of 2017 (State of Chhattisgarh v. Sateram

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Kashyap)]

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Sateram Kashyap, Son of Amaru Kashyap, aged about 55 years, Resident of Village- Pendri, Police Station Hasaud, District JanjgirChampa (Chhattisgarh) and Fertilizer Basti, Ward No.52, Darri, District Korba (Chhattigarh)

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---- Appellant (In Jail)

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Versus

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State of Chhattisgarh, through Station House Officer, Police Station Darri, District Korba (Chhattisgarh)

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---- Respondent

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------------------------------------------------------------------------------------------- For Appellant : Mr. Rishi Rahul Soni, Advocate For Respondent : Mr. Sharad Mishra, Panel Lawyer ---------------------------------------------------------------------------------------------

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal and 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) 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 legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 09.04.2018, passed by the Additional Judge, Katghora to the Court of Additional Sessions Judge, Katghora, District Korba (C.G.) in Sessions Case No.18 of 2017 (State of Chhattisgarh v. Sateram Kashyap), whereby he has been convicted

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and sentenced as under:

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Conviction	Sentence
U/s. 302 of IPC	Imprisonment for life Rs.5,000/- and, in defaul fine, additional rigorous for 03 months.	with fine of t of payment of imprisonment
U/s. 201 of IPC	Rigorous imprisonment fo fine of Rs.1,000/- and, payment of fine, additi imprisonment for 03 mont	r 03 years with in default of onal rigorous hs.
U/s. 404 of IPC	Rigorous imprisonment fo fine of Rs.1,000/- and, payment of fine, additi imprisonment for 03 mont	r 03 years with in default of onal rigorous hs.

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[All the sentences are directed to run concurrently]

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(2) The case of the prosecution, in short, is that between 06.10.2016 to 08.10.2016, timing 08:00 PM to 09:00 AM, at Fertilizer Basti, Ward No.52, Darri, District Korba (CG), the accused-appellant herein firstly within the intent to kill his wife, namely, Triveni Bai (hereinafter referred to as the ‘deceased’) assaulted her by means of sharp edged weapon on her head, due to which, she suffered grievous injuries and died and, thereafter, in order to screen himself from the legal punishment of committing offence of murder, poured kerosene oil over the body of the deceased and set her ablaze and, further, dishonestly misappropriated/converted to his own use the gold and sliver jewelries/ornaments wore by the deceased at the time of incident and, thereby, said to have committed offences under Sections 302, 201 & 404 of IPC.

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(3) It is further case of the prosecution that when firstinformant, namely, Sumit Lal kashyap (PW-01) reported the matter to the police, merg intimation (Ex.P/01) was registered and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/10 and inquest proceedings were conducted vide Ex.P/11. Spot map was also prepared vide Ex.P/02. The dead-body of the deceased was sent for postmortem examination, which was conducted by Dr. M. Nirala (PW-24) and, as per PM report (Ex.P/26), deceased suffered 5^th to 6^th degree burn injuries and fracture of skull and facial bones were also available on his body, which were caused by hard and blunt object. FIR was also registered vide Ex.P/54. The appellantaccused was arrested vide Ex.P/21 and his memorandum statement was recorded vide Ex.P/19. Pursuant to the memorandum statement of the appellant, jewelry/ornaments belonging to the deceased were seized vide Ex.P/20. Certain other articles were also seized from the spot vide Ex.P/12 & Ex.P/15. The aforesaid seized articles were sent for chemical examination and, as per FSL report (Ex.P/46), it has been opined that stains of human blood were found on Article-A (cement), Article-C (niwar) and Article-D (air pump), whereas stains of blood were found on Article-E (pipe) and Article-F (box/container), all seized from the spot. Further, identification of the jewelry/ornaments, which were seized from the possession of the appellant, was also conducted

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vide Ex.P/06 by the Councillor of the local council, namely, Mohd. Ismail Qureshi (PW-22), whereby Smt. Shyam Bai (PW-06) and Smt. Phool Bai (PW-05) identified the said jewelry/ornaments to be of the deceased. 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 26 witnesses and exhibited 55 documents apart from ArticleA/1 & B/1, whereas the appellant-accused in support of his defence, has only examined one witness.

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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 offences under Sections 302, 201 & 404 of IPC and sentenced him as mentioned in the opening paragraph of this judgment, 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. Rishi Rahul Soni, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences, as

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the prosecution has failed to prove the offences beyond reasonable doubt. He further submits that there is no evidence available on record to show that on the date and time of the offence the appellant and the deceased both were living together as husband and wife and, therefore, the learned trial Court has erred in law while invoking Section 106 of the Indian Evidence Act, 1872 (for short the “IE Act”) for convicting the appellant herein. He also submits that though pursuant to the memorandum statement of the appellant, jewelries/ornaments were seized, which were also identified by Smt. Shyam Bai (PW-06) and Smt. Phool Bai (PW-05) to be that of the deceased vide Ex.P/06, but neither Smt. Shyam Bai (PW-06) and Smt. Phool Bai (PW-05) are close relatives of the deceased nor the said identification proceeding was conducted by a

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competent authority i.e. Executive Magistrate, therefore, identification proceeding conducted vide Ex.P/06 is not proved beyond reasonable doubt and, consequently, seizure of jewelries/ornaments pursuant to the memorandum statement of the appellant is of no help to the prosecution. Lastly, learned counsel submits that non-functioning of mobile phone of the appellant cannot be treated to be an incriminating circumstance against him to hold him guilty for the offences in question. Hence, the present appeal deserves to be allowed and the appellant is liable to be acquitted of the said charges on the 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 offences in question. 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/26), wherein it has been opined that the deceased suffered 5^th to 6^th degree burn injuries and fracture of skull and facial bones were also available on her body, which were caused by hard and blunt object, which is duly proved by the statement of Dr. M. Nirala (PW-24). Accordingly, taking into consideration the postmortem report (Ex.P/26) and the statement of Dr. M. Nirala (PW-26), 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

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perverse nor contrary to the record. We hereby affirm the said finding.

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(10) Now, the question would be whether the accused-appellant herein is the author of the crime in question or not, which the learned trial Court has also recorded in affirmative on the basis of following incriminating circumstances, which reads as under:

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“ 1. As the appellant was the only persons who used to visit the house of his first wife (deceased), therefore, he was required to explain as to how and in what manner the deceased suffered injuries and died, which he failed, thus, Section 106 of IE Act is applicable;

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2. Pursuant to the memorandum statement of the appellant, gold and sliver jewelries/ornaments belonging to the deceased were seized;

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3. At the time of the incident, the mobile phone of the appellant was not functioning and he was having motive to commit the offence in question.”

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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 Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra1 which constitute the ‘panchsheel’ of proof 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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1 (1984) 4 SCC 116

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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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(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.01 :

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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 the only person who used to visit the house of his first wife (deceased), therefore, it was imperative on the part of the appellant to explain has to how and in what manner the deceased suffered injuries and died and, consequently, invoked Section 106 of IE Act to convict the appellant for the offence in question. As such, the question would be whether the learned trial Court is justified in invoking Section 106 of the IE Act under the facts and circumstances of the present case ?

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(14) 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 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 evi-

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2 2023 SCC OnLine SC 1261

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dence 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 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 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

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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 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 im-

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pression". 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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(15) 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 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

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3 2024 SCC Online SC 757

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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 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”.

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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) 53. We should also look into the decision of this Court

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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 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

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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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(16) 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 the question is whether the prosecution has been able to prove that on the date and time of the offence the appellant used to reside with the deceased (his first wife) or not. In this regard, the learned trial Court has recorded a finding that though the appellant used to visit the house of his first wife (deceased) and the prosecution has also established that the appellant was the only person who used to visit the house of the deceased, therefore, Section 106 of the IE Act would be

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applicable in the present case. However, the said finding of the learned trial Court is per se erroneous. The prosecution ought to have established that on the date and time of the offence the appellant and the deceased were the only inmates in the house and in the morning (next day) the dead-body of the deceased was found in the said house and, only under such circumstance, the appellant was required to explain as to how and in what manner the deceased suffered injuries and died. In the instant case, the learned trial Court did not record any specific finding that on the date and time of the offence the appellant was staying with the deceased, indeed, only recorded a finding that since the appellant used to visit the house of his first wife at Fertilizer Basti, therefore, he must have caused her death and thereafter he must have absconded. Suspicion howsoever cannot take place or proof and, therefore, prosecution was required to establish that on the date and time of the offence the appellant stayed with the deceased, which in the present case, is completely missing. As such, is not established beyond reasonable doubt that on the date and time of the offence the appellant and the deceased were not the only inmates who were residing in the 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 his house, as the said fact was not in his special knowledge. Consequently, in light of the decision of the Supreme

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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 the deceased. We hereby hold accordingly.

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As regards incriminating circumstance No.02 :

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(17) The next incriminating circumstance that has been relied upon by the prosecution is that pursuant to the memorandum statement of the appellant, gold and sliver jewelries/ornaments were seized vide Ex.P/20, which in the identification proceeding conducted vide Ex.P/06, were identified by Smt. Shyam Bai (PW06) and Smt. Phool Bai (PW-05) to be that of the deceased. However, the said identification proceeding conducted vide Ex.P/06 is not acceptable in the eyes of law for the reasons that: (i) it is apparent from Coloum No.02 & 03 of the said identification panchnama (Ex.P/06) that only one pair of silver anklet and one gold chain were mixed with the jewelries/ornaments, which were seized from the appellant, whereas it was required to be more than one at the time of identification proceeding; (ii) the said identification proceeding (Ex.P/06) was conducted by the Councillor of the local council, namely, Mohd. Ismail Qureshi (PW22) and it was not conducted by any competent authority to do the same i.e. Executive Magistrate. Councillor or Ward Councillor has no authority in law to conduct the said identification proceeding;

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(iii) Smt. Phool Bai (PW-05) and Smt. Shyam Bai (PW-06), who have identified the said jewelries to be that of the deceased are not close relatives of the deceased. They are only the co-workers who used to work with the deceased. As such, in light of aforesaid infirmities, it can safely be held that the identification proceedings conducted Ex.P/06 is not in accordance with law and, consequently, recovery of gold and sliver jewelries/ornaments pursuant to the memorandum statement of the appellant pales into insignificance. We hereby hold accordingly.

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As regards incriminating circumstance No.03 :

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(18) The last incriminating circumstance that has been relied upon by the learned trial Court is that from the morning of 06.10.2016, at about 10:15 AM, till the morning of 08.10.2016, at about 09:53 AM, the mobile phone belonging to the appellant bearing No.8085440414 was not functioning, as during the said period neither a single phone call was done by the appellant nor he received any phone call from anyone, whereas, from 01.10.2016 till the morning of 06.10.2016 and after the morning of 08.10.2016, the said mobile phone of the appellant was continuously working/functioning. Therefore, inference has been drawn by the learned trial Court that non-functioning of the mobile phone of the appellant for the said period was intentional in order to hide the presence of the appellant from the crime scene. However, in our considered opinion, non-functioning of the mobile phone may be

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Criminal Appeal No.795 of 2018

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Page 21 of 22 IN

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attributed to umpteen number of reasons and same cannot be held to be an incriminating circumstance against the appellant in order to hold him guilty of the offences in question. Furthermore, it is well settled law that motive may be an important circumstance in a case based on circumstantial evidence, but it cannot take place of conclusive proof. (See: Sampath Kumar vs. Inspector of Police, Krishnagiri4 ). In a recent decision rendered in the matter of Mahendra Singh vs. State of M.P.5 their Lordships of Supreme Court reiterated the law on the point stating that merely because motive is established, solely on that basis accused cannot be convicted under Section 302 of IPC. We hereby hold accordingly.

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(19) In view of aforesaid discussion, we are unable to hold that the 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 the impugned judgment and same are liable to be set aside.

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(20) Accordingly, the conviction and sentences of the appellant for offences punishable under Sections 302, 201 & 404 of IPC, as imposed upon him by the learned trial Court, are hereby set aside.

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4 (2012) 4 SCC 124

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5 (2022) 7 SCC 157

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Page 22 of 22 IN Criminal Appeal No.795 of 2018

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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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(21) This criminal appeal is allowed .

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(22) 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.

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

¶130

s@if

Sateram Kashyap v. State of Chhattisgarh

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Sateram Kashyap v. State of Chhattisgarh

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