Lav Kumar Nayak And Ors. Vs State Of Chhattisgarh

Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the three appellants namely Lav Kumar Nayak (A-1), husband of the deceased, Kusal Nayak (A-2), brother-in-law of the deceased, and Reshambai Nayak (A-3), mother-in-law of the deceasd, is to the legality, validity and correctness of the judgment dated 30.06.2014 passed by the 3^rd Additional Sessions Judge, Bilaspur, Chhattisgarh, in Sessions Trial No.178/2013, by which the appellants herein have been convicted for offence under Section 302 read with Section 34 of the IPC and sentenced thereunder to suffer imprisonment for life with fine of 500/-₹ each; in default of payment of fine amount the appellants have to undergo additional rigorous imprisonment for three months while acquitting them from offence under Section 304B/34 and Section 201 of the IPC.

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Prosecution story:-

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On 08.08.2013 at about 3:30 pm at village Nayapara Chakarbhatha, Police Station Chakarbhatha, District Bilaspur, Chhattisgarh, the appellants herein in furtherance of their

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common intention demanded dowry of ₹ 2,00,000/- from Seema Nayak and also mentally and physically tortured her and caused her murder by strangulation, thereafter hanged her body in the room.

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Further case of the prosecution is that A-1 reported the matter to the police pursuant to which merg intimation was registered vide Ex.P/5. On the report of Pannalal (PW-5), father of the deceased, that 2 or 3 months prior to the date of incident, when his daughter (deceased) came to his house, she informed him that the appellants herein demanded the dowry of 2,00,000/- for opening the motorcycle garage and they₹ (appellants) also used to torture her. Further on 08.08.2013, he (PW-5) got the information from the appellants that his daughter was in serious condition and when he reached to the house of the appellants he found his daughter dead, pursuant to whcih FIR was registered against the present appellants vide Ex.P/6. Nazari naksha was prepared vide Exs.P/7. Inquest proceedings (Ex.P/3) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/12) proved by Dr. Geeta Pradhan

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(PW-10) & Dr. S.S. Gupta (PW-12), cuase of death was sudden asphyxia due to strangulation and homicidal in nature.

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

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In order to bring home the offence, prosecution has examined as many as 14 witnesses and exhibited 14 documents, whereas, defence, in support of its case, has examined 1 witness and exhibited 5 documents. The statement of the appellants / accused persons were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants / accused persons for the offence as mentioned in the opening paragraph of the judgment, against which the

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appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence.

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Submission of the Parties:-

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Mr. H.S. Ahluwalia, learned counsel for the appellants, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt. He would also submit that though the trial Court has invoked Section 106 of the Indian Evidence Act, 1872 (for short “IEA”) to base the conviction of the appellant, but there is no evidence has been brought on record by the prosecution that the three appellants were in the house in question at the relevant point of time and even otherwise, the trial Court in paragraph No.45 has itself recorded a finding that Lav Kuamr Nayak (A-1) was in the shop. He would further submit that the other two appellants (A-2 & A-3) were also not in the house in question at the relevant point of time, as such, the appellants are entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed.

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Mr. H.A.P.S. Bhatia, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. He would also submit that the appellants and the deceased were used to live in the house in question and on the date and time of offence the appellants were present, therefore, they are required to exaplain in their statements recorded under Section 313 of the CrPC as to how and under what circumstances Seema Nayak died which they failed and, as such, the trial Court has rightly invoked Section 106 of the IEA to base the conviction of the appellants herein. Thus, the appeal deserves to be dismissed.

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

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:- Discussion & Analysis

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10.The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative in relying upon the postmortem report

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(Ex.P/12) proved by Dr. S.S. Gupta (PW-12) & Dr. Geeta Pradhan (PW-10), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature.

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11.Now, the question for consideration would be whether the appellants have assaulted the deceased?

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The case of the prosecution is based on the circumstantial evidence and the trial Court has found incriminating circumstances established. The five golden principles which constitute 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 (supra) in paragraph 153 which state 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 be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra¹ 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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13.The trial Court has proceeded to convict the appellants for offence under Section 302 read with Section 34 of the IPC by invoking Section 106 of the IEA while acquitting them from offence under Sections 304B/34 & 201 of the IPC as the dead

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body of Seema Nayak was found in the house in question where the appellants used to reside along with Seema Nayak. Therefore, the appellants are required to explain in their statement recorded under Section 313 of the CrPC as to how and under what circumstances Seema Nayak died.

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14.Now, the question is whether the trial court has rightly invoked Section 106 of the IEA to convict the appellant?

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15.At this stage, it would be appropriate to quote Section 106 of the Evidence Act, which states as under:-

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“ 106. Burden of proving fact especially within knowledge. —When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

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16.The said provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which

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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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17.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 IEA, 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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Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden of the accused to show that no crime was committed. To infer the guilt of the

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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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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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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

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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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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 Evidence Act, illustrations (a) and (b).

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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

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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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The Latin expression prima facie means “at first sight”, “at first view", or "based on first impression". According, to Webster’s Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “evi-Ideuce sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the charges against the defendant. If they cannot present prima facie evidence, or if an opposing party introduces contradictory evidence, the initial claim may be dismissed without any need for a response by other parties.

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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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18.Similarly, In the matter of Anees v. The State Govt. of NCT3 ,

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their Lordships of the Supreme Court, reviewing its earlier

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decision on the point of Section 106 of the IEA, 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 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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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

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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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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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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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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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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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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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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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“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

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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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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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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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19.Recently, in the matter of Manharan Rajwade v. State of Chhattisgarh4 their Lordships of the Supreme Court on the

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point of Section 106 of the IEA have held in paragraph 7 as

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under:-

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“7. For invoking Section 106 of the Evidence Act, the prosecution ought to have discharged the burden on it by adducing cogent evidence to prove the appellant’s presence at the relevant time in his house. In this case, going by the evidence of PW-1, the deceased had already died before 5:00 p.m., and the said witness stated that the appellant came back home at 7:00 p.m. There is no evidence to prove the theory of the last seen together. Therefore, the prosecution has no discharged the burden on it to prove that the appellant was last seen together with the deceased wife. Thus, Section 106 of the Evidence Act cannot be invoked to shift the burden on the appellant.

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Even the appellant’s answer given to question No.27, if taken in its entirety, does not support the prosecution. The appellant vaguely stated that he came back around 4:00-5:00 p.m. when PW-1 and PW-2 were in the house and told him that the deceased ws not talking and moving. Thus, he reached home after the death of his wife. The allegation was that the death was caused due to strangulation by the appellant.

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Therefore, the prosecution has miserably failed to porve the only circumstance it relied upon, namely, that the appellant and the deceased were last seen together. Therefore, the prosecution has failed to bring home the charge of the offence of murder punishable under Section 302 of the Indian Penal Code.

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Hence, the impugned judgments and orders are set aside, and the appellant is acquitted of the offence alleged against him. The appellant shall be forthwith set at liberty unless his detention is required in any other case.”

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20.Coming to the facts of the present case in light of the

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principles of law laid down by their Lordships of the Supreme

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Court in the above stated judgments, it is quite vivid that the proseuction has been able to prove that the death of Seema Nayak (deceased) to be homicidal in nature and which has righlty been held by the trial Court. It is the case of the proseuction that A-1 being husband of the deceased used to live in the same room and as per nazari naksha (Ex.P/7) room A-1 and the deceased Lav Kumar Nayak is situated adjoining to the room of A-2 Kusal Nayak and the room of A-3 Reshambai Nayak is situated just oposite to the room of A-1 & the deceased. However, the prosecution was required to prove that on the date and at the relevant point of time all the three appellants (A-1, A-2 & A-3) were present in the house in question to prove its case beyond reasonable doubt. However, the trial Court itself has recorded a finding in paragraph No.45 of impugned judgment that apellant Lav Kumar Nayak (A-1) was in the shop adjoining to the room in question at the relevant point of time of offence and further A-2 while replying question No.40 in his statement recorded under Section 313 of the CrPC he has stated that he was not present at the time of offence as he had gone to Bilaspur to bring some parts related to motorcycle and when he came to the

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house he heard the cry and then he entered into the room in question and saw the dead body of the deceased. Similarly, A- 3 in her statement recorded under Section 313 of the CrPC while replying question No.40, she has stated that on the date and time of offence she had gone to her village Chirchida with her husband Rameshwar Prasad (not examined) with regard to some agricultural operation and where she got the information about the death of her daughter-in-law (deceased). Therefore, presence of all the three appellants namely A-1 Lav Kumar Nayak, A-2 Kusal Nayak & A-3 Reshambai Nayak at the relevant point of time is not established even the prosecution has not led any evidence to hold that all the three appellants herein were present in the house in question at the relevant point of time. As such, the prosecution has failed to discharge primary burden of proving its case as the prosecution has failed to prove the theory of last seen together and, therefore, the trial Court has wrongly invoked Section 106 of the IEA to base the conviction of the appellant. Thus, the appellants deserve to be acquitted on the basis of benefit of doubt.

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Conclusion:-

In view of the aforesaid discussion and analysis, the impugned

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judgment of conviction and order of sentence dated 30.06.2014 passed by the trial Court convicting and sentencing the appellants for the offence under Section 302 read with Section 34 of the IPC, is hereby set aside and the appellants are entitled for acquittal on the basis of principle of benefit of doubt. Appellants are stated to be on bail. They need not surrender. However, their bail bonds shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC.

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Let a certified copy of this judgment along with the original

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record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where the appellants are lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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

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Ankit

Lav Kumar Nayak And Ors. v. State Of Chhattisgarh

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Lav Kumar Nayak And Ors. v. State Of Chhattisgarh

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