Karan Kosare Vs State of Chhattisgarh

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Digitally signed by BHOLA NATH KHATAI Date: 2025.02.13 10:12:46 +0530

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2025:CGHC:6994-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1461 of 2019

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Karan Kosare S/o Late Shri Sukhchand Kosare Aged About 32 Years Occupation Labour R/o Ward No. - 02, Near Jaitkham, Satnai Para, Police Station - Dhamadha, District - Durg Chhattisgarh

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... Appellant

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versus

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State Of Chhattisgarh Through The Station House Officer, Police Station Dhamadha, Distt. - Janjgir - Champa Chhattisgarh

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... Respondent

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For Appellant : Mr. Rishi Rahul Soni, Advocate For Respondent/State : Mr. Soumya Roy, Panel Lawyer

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(Division Bench)

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Hon'ble Shri Justice Sanjay K. Agrawal

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment On Board

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(07.02.202 5)

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Sanjay K. Agrawal, J.

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1. This criminal appeal has been preferred under Section 374(2) of Cr.P.C. calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 06.08.2019, passed by learned 2^nd

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Additional Sessions Judge, Durg (C.G.) in Sessions Trial No.58/2019, whereby the appellant herein has been convicted for offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo Life Imprisonment with fine of ₹1,000/- and in default of payment of fine, to suffer one year additional rigorous imprisonment.

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2. The case of prosecution, in brief, is that on 04.01.2019 at about 12:30 p.m., near Jaitkham, Satnami Para, Police Station Dhamdha, District Durg, the appellant herein, assaulted his wife Neha Kosare (now deceased) by hammer and scissors, due to which she suffered grievous injuries and died. The matter was reported to the Police, pursuant to which, Merg Intimation was recorded vide Ex. P-1 and FIR was registered vide Ex. P-22. Inquest was conducted vide Ex. P-4 and dead body of deceased Neha Kosare was subjected to post-mortem, which was conducted by Dr. Dhanwantari Prasad Thakur (PW-9), who proved the postmortem report Ex. P-17, according to which, cause of death was stated to be cardio-respiratory arrest due to haemorrhagic & hypovolemic shock due to multiple injury on head & face and death was homicidal in nature. Pursuant to memorandum statement of appellant (Ex. P- 12), the weapon of offence i.e. hammer and scissors were seized vide Ex. P-13, which were sent for chemical examination to FSL along-with other seized articles and as per FSL report Ex. P-30, blood was found on the hammer but no blood was found on the scissors. After due investigation, appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law.

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3. During the course of trial, in order to bring home the offence, prosecution examined as many as 10 witnesses and exhibited 31 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. The statement of appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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4. The trial Court, after appreciation of oral and documentary evidence on record, convicted and sentenced the appellant herein as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred by the appellant questioning the legality, validity and correctness of the impugned judgment.

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5. Mr. Rishi Rahul Soni, learned counsel for appellant would submit that merely on the basis of the statement of Sunil Kumar Mahilange (PW-2), the appellant has been convicted for offence under Section 302 of IPC whereas as per the statement of Sunil Kumar Mahilange (PW-2) himself, the appellant and the deceased were not living alone but his aunt-in-law (बुआ सास) Smt. Ramkumari Kosare used to live with the appellant and the deceased in the house in question. Therefore, the trial Court is absolutely unjustified in convicting the appellant for the said offence applying the provisions of Section 106 of the Evidence Act. He submits that as per FSL report (Ex. P-30), no human blood was found on the weapon of offence i.e. hammer, therefore, the seizure of hammer from the possession of appellant is of no useful to the prosecution. As such, the prosecution has failed to establish the case beyond reasonable doubt and

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the appellant is entitled for acquittal on the basis of the principles of benefit of doubt.

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6. Mr. Soumya Roy, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence under Section 302 of I.P.C. As such, the appeal deserves to be dismissed.

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7. 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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8. The case of prosecution is not based on direct evidence. It is based on circumstantial evidence. The five golden principles which constitute the Panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra¹ which must be fulfilled for convicting an accused on the basis of circumstantial evidence. The relevant paragraph 153 of the said judgment reads as under: -

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“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should

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1 (1984) 4 SCC 116

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be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra² 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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9. Now, we consider the circumstances recorded by the trial Court in the light of the principles of law laid down by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda (supra).

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10. The first and foremost circumstance for consideration is as to whether the death of deceased Neha Kosare was homicidal in nature?

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11. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex. P-17

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2 (1973) 2 SCC 793

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proved by Dr. Dhanwantari Prasad Thakur (PW-9), according to which, cause of death was stated to be cardiorespiratory arrest due to haemorrhagic & hypovolemic shock due to multiple injury on head & face and death was homicidal in nature, which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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12. The conviction of appellant is based primarily on the application of Section 106 of the Indian Evidence Act and the statement of witness Sunil Kumar Mahilange (PW-2).

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13. Now, the question for consideration is as to whether Section 106 of the Indian Evidence Act would be applicable or not?

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14. Section 106 of the Indian Evidence Act, 1872, 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. This 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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16. In this regard, the Supreme Court in the matter of Nagendra Sah v. State of Bihar³ , in paragraphs - 19, 22 & 23 has held as under:

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“19. In this case, as mentioned above, neither the prosecution witnesses have deposed to that effect nor any other material has been placed on record to show that the relationship between the appellant and the deceased was strained in any manner. Moreover, the appellant was not the only person residing in the house where the incident took place and it is brought on record that the parents of the appellant were also present on the date of the incident in the house. The fact that other members of the family of the appellant were present shows that there could be another hypothesis which cannot be altogether excluded. Therefore, it can be said that the facts established do not rule out the existence of any other hypothesis. The facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant.

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22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.

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When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.

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3 (2021) 10 SCC 725

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17. A careful perusal of the aforesaid judgmen t of the Hon’ble Supreme Court would show that section 106 of the Evidence Act would not be applicable where apart from the accused, other persons were residing in the house where incident took place. As in the case of Nagendra Sah (supra), apart from the appellant, his parents were also present in the house on the date and time of incident, their Lordships held that other members of the family of the appellant were present, would show that there could be another hypothesis which cannot be altogether excluded.

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18. Reverting to the facts of the present case, in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that the trial Court has relied upon the statement of Sunil Kumar Mahilange (PW-2) for convicting the appellant for offence under Section 302 of IPC. But, Sunil Kumar Mahilange (PW-2) has clearly stated in para-1 of his court statement that he was residing in the house of his father-in-law Ramkumar Satnami (PW-1). In the adjacent house, his aunt-in-law (ब ु आ सास ) Ramkumari Kosari used to live with appellant Karan Kosare and deceased Neha Kosare. Though Ramkumari Kosari has been cited as prosecution witness but she has not been examined for the reason best known to the prosecution.

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19. Sunil Kumar Mahilange (PW-2) has further stated that the courtyards of his father-in-law and aunt-in-law are adjacent to each other. There is a small wall in between from where one can see the other’s courtyard. He has stated that on the date of offence, when he went to the courtyard to wash his hands before having food, he saw the appellant washing his hands near the septic tank and at that time, his hands were stained with blood. When he asked the appellant as to how

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his hands got stained with blood, he did not say anything. Except this, nothing has been brought on record to establish that the appellant and the deceased were in the house in question, before or immediately after the date and time of offence, Admittedly, the house of appellant and the house where Sunil Kumar Mahilange (PW-2) was staying, are different. Furthermore, Ramkumari Kosare who used to live along with the appellant and the deceased ought to have been examined by the prosecution to demonstrate the fact that on the date and time of offence, the appellant and the deceased were all alone in the house. From the statement of Sunil Kumar Mahilange (PW-2), it is established that on the date and time of incident, Ramkumari was present in the house in question. Hence, in view of the principle of law laid down by the Hon’ble Supreme Court in the case of Nagendra Sah (supra), the provisions of Section 106 of the Evidence Act would not be applicable in the facts of the present case.

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20. The next incriminating circumstance which has been found to be proved by the trial Court is that pursuant to the memorandum statement of the appellant, the weapon of offence i.e. hammer was seized vide Ex. P-13, on which, as per FSL report Ex. P-30, blood was found. However, in the FSL report (Ex. P-30), no human blood was found on the hammer and the blood group has also not been ascertained. Though, on the weapon of offence blood was found but it could not be established that the weapon of offence was used by the appellant in commission of the offence. Therefore, in view of the decision of the Hon’ble Supreme Court in the case of Mustkeen alias Sirajudeen Vs. State of Rajasthan⁴ recovery is of no use. Prosecution has failed

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4 (2011) 11 SCC 724

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to establish its use in commission of offence. Thus, merely on the ground that the death was homicidal in nature, the appellant cannot be convicted for the offence under Section 302 of IPC.

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21. In view of the aforesaid discussion, we find that as per the principle of ‘Panchsheel’ laid down by the Honorable Supreme Court in the case of Sharad Birhichand Sarda (Supra), the chain of circumstances are not so complete in which the appellant can be held guilty for the offence. Consequently, we are unable to uphold the conviction of the appellant for the aforesaid offence and he is entitled for acquittal on the basis of the principle of the benefit of doubt.

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22. Accordingly, the impugned judgment dated 06.08.2019 passed by the Trial Court convicting and sentencing the appellant for offence under Section 302 of IPC is hereby set aside/quashed on the basis of benefit of doubt and the appellant is acquitted from the said offence. The appellant 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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23. This criminal appeal, accordingly, stands allowed .

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

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Sd/Sd/-

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(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)

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Judge Judge

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Khatai

Karan Kosare v. State of Chhattisgarh

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Karan Kosare v. State of Chhattisgarh

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