Suresh Nishad Vs State of Chhattisgarh

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2025:CGHC:1717-DB Digitally A signed by ANNAJEE A RAO ANNAJEE RAO NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 738 of 2019

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1 - Suresh Nishad S/o Nandlal Nishad Aged About 37 Years R/o Village Vishrampuri Bandhpara Police Station Vishrampuri District Kondagaon Chhattisgarh.

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… Appellant

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versus

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1 - State of Chhattisgarh through the Police Station Vishrampuri District Kondagaon Chhattisgarh. ... Respondent

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For the appellant : Mr. P.K. Tulsyan, Advocate For the State : Mr. H.A.P.S. Bhatia, Panel Lawyer.

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Division Bench

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Hon’ble Shri Justice Sanjay K. Agrawal

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Hon’ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board (10.01.2025)

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Sanjay Kumar Jaiswal, J,

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1. This appeal under section 374(2) of CrPC is directed against the judgment of conviction and order of sentence dated 23.04.2019 passed by the learned Additional Sessions Judge, Kondagaon, in Sessions Trial No. 48 of 2018 whereby the appellant has been convicted under section 302 and sentenced to undergo

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imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for six months.

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2. Prosecution case, in brief, is that deceased Meena Bai was kept as second wife by accused Suresh Nishad. The appellant had to pay a huge amount to the Gond community to keep Meena Bai as his second wife. Thereafter, whenever the deceased used to talk to any other man or used to do anything on her own accord, she used to be beaten badly by the appellant. Even before the incident, the accused had beaten his wife Meena Bai several times. On 26.03.2018, deceased Meena Bai had gone to see the fair in Parond village. When Meena Bai did not return home till evening , the accused brought her home from Parond on a motorcycle alongwith his friend Mansingh and thereafter he brutally beat Meenabai at night. The accused woke up in the morning and went towards the pond. When he returned home, he saw that his wife Meenabai had died. On the above report, a case number 14/2018 as also a crime no. 27/2018 under Section 302 of IPC was registered in Vishrampuri Police station and investigation was taken up. During the investigation, statements of witnesses were recorded, inspection of the scene of the incident and inspection of the dead body and Panchnama proceedings of the dead body were taken up and then the postmortem was conducted. The doctor opined that the death of the deceased Meena Bai was due to asphyxia, hemorrhagic and neurogenic It was advised to preserve the bed-sheet on which the deceased had vomited and get it chemically tested. The vomit on the bedsheet and the ground by the deceased Meena Bai from the scene of incident was seized and taken into custody in the presence of witnesses as per the seizure memo. Accused was arrested on 06.04.2018. The seized property was deposited in FSL Jagdalpur for chemical examination and the test report was obtained. After completing investigation, the the charge sheet was filed.

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3. The accused pleaded innocence and claimed to be tried. The prosecution in order to prove its case has examined as many as 11 witnesses and exhibited 16 documents. After examination of the prosecution witnesses, the statement of

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appellant was recorded u/s 313 of CrPC in which the appellant denied the charges and pleaded innocence and false implication in the crime. The learned Additional Sessions Judge after evaluating the evidence convicted and sentenced him as mentioned in the opening paragraph. Hence, this appeal.

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4. Learned counsel for the appellant argues that there is no evidence that the deceased was last seen with the appellant before her death and in the house where Meena Bai’s dead body was found, the appellant’s father and also the deceased’s co-wife Mrs. Gayatri Nishad (P.W.4) were also residing in other portion of the house, therefore, the provisions of section 106 of the Indian Evidence Act are not attracted. Learned counsel has relied on decisions of this Court in Anant Dutta

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v. State of Chhattisgarh AIRONLINE 2022 CHH 1527 and Harihar Kumar Versus

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State of Chhattisgarh decided on 12.01.2024 and submits that the trial court was not justified in convicting the appellant which needs interference and prays that the appellant be acquitted of the charges punishable u/s 302 IPC.

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5. Per contra, learned State Counsel contends that impugned judgment of conviction and order of sentence is well merited and the findings recorded by the trial Court cannot be said to be unjustified. He further submits that having regard to the evidence and circumstances appearing against the appellant, the learned trial Court has rightly convicted and sentenced him, which needs no interference.

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6. We have heard learned counsel for the parties and considered the rival submissions and have also perused the records. 7. Deceased Meenabai’s mother Herobai Markam (P.W.1), father Raghuram Markam (P.W.2), sister Mrs. Monika Korram (P.W.3), appellants’ first wife Mrs. Gayatri Nishad (P.W.5), appellant’s brother-in-law Durga Prasad Nishad (P.W.5), Mrs. Mithila Markam (P.W.6), Mrs. Manai Bai Salam (P.W.7) and Mrs. Kumari Bai Vatti (P.W.8) have stated that Meena Bai has died. Dr. Sunil Kashyap (P.W.10) had examined Meenabai’s dead body on 28.03.2018 and had given a report (Ex.P-9) stating that Meena Bai had sustained several injuries on her body and her neck’s third and fourth bones were broken. Her death was due to cardiac arrest caused

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by blood loss and mental shock caused by several injuries, which was homicidal in nature. Thus, the conclusion of the trial Court that the death of Meena Bai was homicidal is found to be correct as it is not contrary to the facts and evidence.

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8. The statements of prosecution witnesses also prove the fact that the deceased Meenabai was first married to a person named Shivlal Sori in Odisha whom she left and later the appellant kept Meenabai as his second wife by Chudi custom. The first wife of appellant is Mrs. Gayatri Nishad (P.W. 5). According to the statement of Gayatri Nishad, the appellant kept her and Meena Bai in separate rooms of the same house. They had separate domestic establishments in terms of food and drink. Since Meena Bai was her co-wife, she herself lived separately from the appellant.

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9. The prosecution case against the appellant is not based on direct evidence but on circumstantial evidence. The trial Court has convicted him on the basis of presumption under Section 106 of the Indian Evidence Act. The statement of prosecution witnesses P.W.1 to P.W.8 also revealed the fact that before her death Meena Bai had gone to village Parond alone to see the fair. Her elder sister Birjobai used to live in village Parond itself. Meena Bai’s younger sister Mrs. Monika Korram (P.W.3) has stated that when her elder sister Birjobai went there, she came to know that Meena Bai had also come to the fair in village Parond but they did not meet her. The statement of deceased Meena Bai’s mother Hero Bai Markam (P.W.1), father Raghuram Markam (P.W.2), sister Mrs. Monika Korram (P.W.3), appellant’s brother Durga Prasad Nishad (P.W.5) also revealed the fact that the appellant used to beat Meena Bai but there is no evidence on record to show that the appellant had beaten Meena Bai just before the incident. Mansingh with whom the appellant went to bring Meenabai back from the fair at Parond has not been examined in prosecution case.

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10. Durga Prasad Nishad (P.W.5), the cousin of the appellant , has also stated that Meena Bai used to consume excessive alcohol. He has also admitted the suggestion of the appellant that Meena Bai had consumed alcohol and fell into the

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septic tank, which led to her death. He has also admitted that Meena Bai had gone to the Parond fair without informing the appellant and on the date of the incident, he himself was fishing from 8.00 am till 3.00 p.m., and during that time, the appellant was also with him.

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11. Thus the relationship between the deceased and the appellant, as stated, is that deceased happens to be the second wife of appellant by relation. The first wife was also residing in the same house in one of the rooms where Meena Bai was found dead. According to the statements of the deceased’s family witnesses, they came to know from Lalu Ram Vishwakarma that the appellant had gone to the fair of Parond from where Meena Bai was brought home while being beaten up a lot, but Laluram Vishwakarma has not been examined by the prosecution. Birjo Bai has also not been examined by the prosecution in this regard whether Meena Bai had gone to her sister Birjo Bai’s house in the fair of Parond and had given any information. Thus there is lack of direct evidence against the appellant. Even no weapon was seized from him to establish his link with the alleged offence.

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12. The evidence adduced by the prosecution shows that at the time of the alleged incident, there were other members of the family of the accused including his father and deceased’s co-wife Mrs. Gayatri Nishad (P.W.4) in his house and the fact that the other members of the family of the appellant were also present in the house in question at the time when the incident had occurred shows that there could be another hypothesis which cannot be altogether excluded. The Supreme Court in Nagendra Sah v. State of Bihar (2021) 10 SCC 725 in paras 16 & 19 held as under :

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“ 16 . As can be seen from the evidence of the prosecution witnesses, the in-laws of the deceased were very much staying in the same premises where the appellant and deceased were staying. PW No.1 stated that he saw the father-in-law of the deceased extinguishing the fire. The learned Trial Judge has specifically discarded the testimony of PW Nos.1 to 5. But PW No.6 Shri Vijay Kumar Gupta stated that he noticed that family members of the accused were extinguishing the fire. The evidence adduced by the prosecution shows that at the time of the alleged incident, there were other members of the family of the accused

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with the accused in his house. However, it is not even the case of the prosecution that the relationship between the appellant and his deceased wife was strained or that the relationship between the deceased wife and the appellant’s parents was strained. On the contrary, some of the prosecution witnesses have stated that their relationship was cordial.

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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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(Emphasis supplied)

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13. The appellant has been convicted under Section 106 of the Evidence Act on the ground that the deceased Smt. Meena Bai being his second wife was residing in the same house with him, therefore, the appellant is responsible to explain as to how the death of Meena Bai had occurred in his house, which has not been explained by him, therefore, he has been held guilty for her death.

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14. Learned counsel for the appellant argues that there is no evidence that the deceased was last seen with the appellant before her death. Firstly, the burden of proof is on the prosecution to prove that a particular fact is known only to the accused and if the accused does not explain about that particular fact, he can be held guilty but such is not the case in this case. There is no evidence of the last seen together with the deceased and in the house where Meena Bai’s dead body was found, the appellant’s father also resides with the appellant and in the other portion, the deceased’s co-wife Mrs. Gayatri Nishad (P.W.4) were also the inmates. In such a situation, the provisions of section 106 of the Indian Evidence Act are not attracted in the case and the appellant cannot be convicted on that basis.

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15. In the matter of Shambhu Nath Mehra v. The State of Ajmer AIR 1956 SC

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404 , their Lordships of the Supreme Court have held that the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution, to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The Supreme Court while considering the word “especially” employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J., observed as under: -

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“11. … The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49(B).”

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Their Lordships further held that Section 106 of the Evidence Act cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts.

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16. The decision of the Supreme Court in Shambhu Nath Mehra’s case (supra) was followed with approval recently in the matter of Nagendra Sha v. State of Bihar (2021) 10 SCC 725 in which it has been held by their Lordships of the Supreme Court as under: -

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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

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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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23. 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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17. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab AIR 1956 SC 460 , while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him.

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18. The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar AIR 1974 SC 778 and it has been held that burden of proving the case against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence. 19. In the light of the above judicial pronouncements and considering the

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evidence in the case on hand, it is obvious that the first wife of the appellant, Smt. Gayatri Nishad (P.W.5) has categorically admitted in her evidence that she livess with her children in the other portion of the same house. That apart, the sister of the deceased, Smt. Monica Korram (P.W.3) has also stated in Para -2 of her evidence that the father of the appellant also lives in that house along with the appellant and the deceased Meena Bai. Thus, taking into account the fact that when other persons were also present in the house apart from the appellant and the deceased at the time when the incident occurred, then in the absence of any other corroborative evidence and in the light of the decision rendered in case of Nagendra Sah (supra), section 106 of the Indian Evidence Act would not be applicable in the instant case. Therefore, the appellant cannot be held guilty beyond doubt for the death of Meena Bai, rather his conviction deserves to be set aside on the basis of benefit of doubt.

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20. In view of the foregoing discussion, the impugned judgment of conviction and order of sentence cannot be allowed to sustain and is hereby set aside. The appellant is acquitted of the offence u/s 302 IPC on the basis of benefit of doubt.

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21. Appellant is stated to be in jail since 06.04.2018. He be released from jail forthwith, if his detention is not required in connection with any other offence. 22. In the result, the appeal is allowed .

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23. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned Trial Court and the Superintendent of Jail where the appellant is presently lodged and suffering his jail sentence be also supplied with a copy of this judgment, for information and necessary action.

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

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Rao

Suresh Nishad v. State of Chhattisgarh

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Suresh Nishad v. State of Chhattisgarh

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