Pyare Lal @ Feku Vs State of Chhattisgarh

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Digitally signed by BHOLA NATH KHATAI Date: 2025.01.23 11:50:17 +0530

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2025:CGHC:3355-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 436 of 2019

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Pyare Lal @ Feku S/o Bhola Ram Aged About 28 Years Caste Dhobi, Occupation Agriculture, R/o Village Bagbahar, Police Station Bagbahar, District Jashpur, Chhattisgarh

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... Appellant

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versus

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State Of Chhattisgarh Through Police Of Police Station Bagbahar, District Jashpur, Chhattisgarh

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... Respondent

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For Appellant : Mr. J. K. Saxena, Advocate For Respondent/State : Mr. Ashutosh Shukla, 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

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(20.01.202 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

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correctness of the judgment of conviction and order of sentence dated 01.07.2016, passed by learned Additional Judge to Additional Sessions Court, Kunkuri, District Jashpur (C.G.) in Sessions Trial No.16/2016, 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 500/- and in₹ default of payment of fine, to suffer one month additional rigorous imprisonment.

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2. The case of prosecution, in brief, is that on 28.01.2016 at about 9:30 a.m., at village & PS Bagbahar, District Jashpur, the appellant herein, assaulted his 5 year old daughter Ku. Kinjal (now deceased) by an axe, due to which she suffered grievous injuries and died. The matter was reported to the Police by Bholaram (PW-1), pursuant to which, Merg Intimation was registered vide Ex.P-1 and FIR was registered vide Ex.P-2. Inquest was conducted vide Ex.P-7 and dead body of deceased Kinjal was subjected to post-mortem, which was conducted by Dr. Narendra Kumar Ram (PW-8), who proved the post-mortem report Ex. P-19, according to which, cause of death was stated to be cardiorespiratory failure due to neurogenic shock due to intracranial bleeding and death was homicidal in nature. Pursuant to memorandum statement of appellant (Ex. P- 11), the weapon of offence i.e. axe was seized vide Ex. P-9, which was sent for chemical examination to FSL along-with other seized articles and as per the FSL report Ex. P-29, blood was found on the said axe. 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, in which, the appellant

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abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

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3. During the course of trial, in order to bring home the offence, prosecution examined as many as 17 witnesses and exhibited 30 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. J. K. Saxena, learned counsel for appellant would submit that the appellant has been convicted invoking Section 106 of the Evidences Act whereas as per the statement of Bholaram (PW-1), he and his wife Fagni were present in the house in question on the date and time of offence. He would submit that the trial Court is absolutely unjustified in convicting the appellant for the said offence applying the provisions of Section 106 of the Evidence Act and therefore, the appellant is entitled for acquittal on the basis of the principles of benefit of doubt.

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6. Mr. Ashutosh Shukla, learned State counsel, would support the impugned judgment and submit that the prosecution

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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 any direct evidence. It is based solely on circumstantial evidence. However, the Trial Court proceeded to convict the appellant applying Section 106 of the Evidence Act.

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9. 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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10. 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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11. 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

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accused persons were in such a position that they could have special knowledge of the fact concerned.

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12. In this regard, the Supreme Court in the matter of Nagendra Sah v. State of Bihar¹ , 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

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1 (2021) 10 SCC 725

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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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13. 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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14. 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 from the statement of Bholaram (PW-1) that on the date and time of occurrence, apart from the deceased and the appellant, he and his wife Fagni were also present in the house in question. Bholaram (PW-1) has clearly stated that in the morning of the incident, he and his wife Fagni were sitting in the house. At that time, the deceased was holding tea which she threw in the fire. Thereafter, she ran towards the courtyard and fell on the axe which was leaning against the wall due to which she suffered injuries on her head and died during treatment in the hospital. As per the statement of Bholaram (PW-1), the head injury of the deceased was accidental in nature. From the statement of Bholaram (PW-1) who is the grand-father of the deceased, it is clearly established that on the date and time of incident, he and his wife were present in the house. As such, the Trial Court could not have invoked Section 106

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of the Evidence Act in the absence of explanation in how and what circumstances the deceased suffered grievous injury. 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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15. Furthermore, on the basis of memorandum statement of the appellant, the weapon of offence i.e. axe was seized vide Ex. P-9 and as per FSL report Ex. P-29, blood was found on the said axe. 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. Even otherwise, as per the principle of law laid down in the case of Mustkeem alias Sirajudeen v. State of Rajasthan² , which has been followed in the matter Raja Naykar v. State of Chhattisgarh³ , the finding of blood stain on the seized article is one of the circumstances, on the basis of which, the accused cannot be convicted for the offence under Section 302 of IPC.

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16. In that view of the matter, we are unable to sustain the conviction of the appellant for the aforesaid offence. Accordingly, the impugned judgment dated 01.07.2016 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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2 (2011) 11 SCC 724

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3 (2024) SCC Online SC 67

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17. This criminal appeal, accordingly, stands allowed .

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18. 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) Judge Judge

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Khatai

Pyare Lal @ Feku v. State of Chhattisgarh

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Pyare Lal @ Feku v. State of Chhattisgarh

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