Dhania Sabor Vs the State of Assam

1. Heard Mr. N.K. Kalita, learned Amicus Curiae, appearing for the appellant. Also heard Ms. B. Bhuyan, learned senior counsel and APP, Assam, appearing for the State.

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2. This appeal has been filed against the impugned judgment dated

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31/052023 Passed by the learned Sessions Judge, Biswanath, Biswanath Chairali, in Sessions Case No. 8/2022, by which the appellant has been convicted under Section 302 IPC for having caused the death of his neighbor Bijay Tanti, who had gone to the house of the appellant, to stop the appellant and his wife from quarreling with each other. The appellant was thereafter sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default, rigorous imprisonment for 1 (one) month.

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3. The Prosecution case in brief, is that the wife of the deceased, who is also Prosecution witness (PW) No.1, submitted an FIR dated 23/06/2019 to the Officer-in-Charge of the Gingia Police Station, stating that at about 10 p.m. on 22/06/2019, the appellant had killed her husband by hacking him with a dao, following an altercation on a trivial matter. Consequent to the FIR, Gingia PS case No. 81/2019 under Section 302 IPC was registered. After investigation was completed by the Investigating Officer (IO) (PW-6), the I.O submitted the charge-sheet, having found a prima facie case under Section 302 IPC against the appellant.

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4. After the case had been committed to the learned Sessions Court for trial, the Sessions Court framed charge under Section 302 IPC against the appellant, to which the appellant pleaded not guilty and claimed to be tried. The learned Trial Court thereafter examined 6 (six) prosecution witnesses and after examining the appellant under Section 313 Cr.P.C., it came to a finding that the appellant was guilty of having murdered the deceased. The learned Trial Court thereafter convicted the appellant under Section 302 IPC and sentenced the appellant, as stated earlier.

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5. The learned Amicus Curiae submits that there were no eyewitnesses to the crime and no weapon was seized by the Police. He also submits that the

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circumstantial evidence did not form a complete chain, to justify the learned Trial Court in convicting the appellant under Section 302 IPC. He also submits that vital witnesses who had allegedly seen the crime, as had been narrated in the testimonies of the prosecution witnesses, had not been made prosecution witnesses by the police and in the absence of their evidence, Section 302 IPC could not have been said to be proved against the appellant. He also submits that Section 106 of the Evidence Act is not attracted to the facts of the case, inasmuch as, the prosecution had not been able to produce circumstantial evidence/foundational facts, pointing to the guilt of the appellant.

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6. On the other hand, the learned APP submits that the evidence of the prosecution witnesses provides a complete set of circumstantial evidence, which only points towards the guilt of the appellant and leaves out any hypothesis that the appellant is not guilty of the crime. She submits that the evidence of the witnesses goes to show that the appellant and his wife were quarreling, for which the deceased had gone to the house of the appellant, to stop the appellant and his wife from quarreling. However, the attempt by the deceased to pacify the appellant and his wife from quarreling, ended with the appellant and the deceased quarreling, which ultimately led to the death of the deceased at the hands of the appellant. She also submits that even though there was no recovery of the weapon used in the crime, the fact that a sharp knife/dao had been used on the deceased was proved by the evidence of the medical Doctor and other prosecution witnesses, on the basis of the injury inflicted upon the deceased. She further submits that when the evidence of the PW-2 is to the effect that the appellant was in his house when the body of the deceased was discovered in the appellant’s kitchen, the same required the appellant to explain the cause of death of the deceased in his house. However, the appellant did not

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give any explanation or take the plea of alibi. She submits that when the guilt of the appellant has been established by circumstantial evidence and as the death of the deceased had occurred within the four walls of the house of the appellant, the appellant was required under Section 106 of the Evidence Act to explain as to how the death of the deceased had occurred, which was in special knowledge of the appellant. In the absence of any plea of alibi or the reasons for which the deceased had died being given by the appellant, it can be assumed that the appellant had caused the death of the deceased, when the same is considered with other circumstantial evidence.

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7. The learned Additional Public Prosecutor submits that non-examination of vital witnesses does not weaken the case of the prosecution, keeping in view the fact that the evidence of PWs-1 & 2 had proven the presence of the appellant at the scene of the crime. However, the appellant had not made any hue & cry with regard to the deceased dying in his kitchen. As such, the appellant had failed to prove his burden of not being the cause of death of the deceased. She submits that though there are some lapses in the investigation of the case by the prosecution, the same would not weaken the case of the prosecution. In support of her submission that non-examination of material witnesses is not fatal to the case of the prosecution, she has relied upon the case of Raja @ Rajinder Vs. State of Haryana, reported in (2015) 11 SCC 43 (para 13).

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8. We have heard the learned counsels for the parties.

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9. As can be seen from the submissions made by the counsels and the evidence adduced by the learned Trial Court, the deceased had gone to the house of the appellant in an apparent bid to stop the appellant and his wife from quarrelling. This is apparent

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from the evidence of PW-1, the wife of the deceased. However, it appeared that the attempt by the deceased to help the appellant and his wife from quarrelling ended in disaster, as the deceased ended up dead in the kitchen of the appellant with his neck being cut.

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10. The evidence of PW-2 is to the effect that when he went into the house of the deceased, he saw the deceased lying dead in the house of the appellant with his neck cut. PW-2 further stated that the villagers had told him that the appellant had hacked the deceased. He also stated that the appellant was present inside his own house, when he saw the deceased.

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11. The evidence of PW-3, who is a Teacher, is to the effect that one Satku, a labourer of the Tea Estate had informed him that the appellant had hacked the deceased. On going to the house of the appellant, he saw the deceased lying in the verandah of the residence of the appellant. The deceased was wet with blood and was lying in a moribund condition. There was also a cut injury on the neck of the deceased. He also stated that the residence of the appellant and the deceased were adjacent to one another. He informed Rajen Bora (PW-4) and thereafter, the Gingia Police Station was also informed about the incident. He also heard that the deceased had gone to the house of the appellant on hearing a quarrel between the appellant and his wife. Thereafter, the appellant and the deceased had a quarrel.

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In his cross-examination, PW-3 stated that he did not see the appellant at the place of occurrence when he reached their house and that since the appellant was not available it was suspected that the appellant had killed the deceased.

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12. The evidence of PW-4 is to the effect that PW-3 had informed him over phone that the deceased had been killed by the appellant. On reaching the place of occurrence

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he saw the deceased lying in the house of the appellant in a grievously injured condition and in a moribund state. The police were also informed. PW-4 thereafter stated that the wife of the appellant had told him that the appellant had cut the deceased when he came to intervene in the quarrel that had cropped up between the appellant and his wife.

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In his cross-examination, PW-4 did not deny the suggestion that he did not tell the police that the wife of the appellant had told him that a quarrel had taken place between the appellant and his wife. Further, the appellant had cut the deceased, when he had intervened in their quarrel. .

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13. The evidence of PW-5, who is the Doctor, is to the effect that he conducted postmortem examination on the deceased and his finding was that there was bleeding on the neck, due to one incise wound of size 4 x 2 x .5 inches over left lateral area of larynx extended up to left posterior inferior auricular area and all the cervical vessels left side were found cut. PW-5 stated that death occurred due to cardio respiratory failure, as a result of the injuries sustained.

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14. The evidence of PW-6, who is the Investigating Officer, is to the effect that he was informed over phone with regard to the killing of the deceased and when he reached the place of occurrence, he saw the dead body of the deceased lying in the residence of the appellant and inquest was held over the dead body. Two witnesses namely, Raju Sawtal and Anil Sawtal (PW-2) were questioned and they stated that the appellant had hacked the deceased following a quarrel. P.W. 6 further stated that the informant had lodged an FIR. He also stated that he recorded the statements of the witnesses and sent the dead body to the hospital. He went to the place of occurrence and drew a sketch map. On finding incriminating materials against the appellant, he submitted a chargesheet against the appellant under Section 302 of the IPC.

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In his cross-examination PW-6 stated that he did not question the wife of the appellant.

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15. The examination of the appellant under Section 313 Cr.P.C reveals that the appellant has made a blanket denial with regard to all the evidence that had been recorded against him, by simply saying “It is false”.

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16. As can be seen from the evidence, there is no direct evidence proving the guilt of the appellant. There were no eyewitnesses and neither have the material witnesses, i.e. one Satku or villagers who had apparently stated that the appellant had hacked the deceased, been made prosecution witnesses.

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17. In the case of Raja @ Rajinder (supra), the Supreme Court has held that non-examination of a material witness is not a mathematical formula for discarding the weight of the testimony available on record, if the same is natural, trustworthy and convincing. The problem in the present case is with regard to the fact that there has been no explanation given by any of the prosecution witnesses, as to the kind of weapon that had been used to cut the neck/nape of the deceased. It is quite apparent that a sharp-edged weapon had been used for committing the crime in question. However, there has been no attempt at giving an explanation as to why the prosecution had not examined the witnesses, the appellant or others, with regard to the weapon used for committing the offence. Further, though there appeared to be material witnesses who allegedly were eye-witnesses, no attempt has been made by the prosecution to make the said Satku and other villagers, who had allegedly stated that the appellant had killed the deceased, as witnesses. The entire case rests on circumstantial evidence.

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18. Section 106 of the Indian Evidence Act, 1872 states as follows :

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“106. Burden of proving fact especially within knowledge . –– When any

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fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

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Illustrations

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(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

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(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.”

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19. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The ordinary rule that the onus lies on the prosecution in a criminal trial is not modified by Section 106, though Section 106 of the Evidence Act is an Exception to Section 101. Section 106 is designed to meet certain exceptional circumstances, in which it would be impossible or extremely difficult for the prosecution to establish facts, which are especially within the knowledge of an accused.

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20. In the case of Shambu Nath Mehra v. State of Ajmer , reported in (1956) 1 SCC 337, the Supreme Court while considering the word "especially" employed in Section 106 of the Evidence Act speaking through Vivian Bose, J., observed as under: (SCC p. 341, para 11)

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“ 11. .... The word "especially" stresses that it means facts that are pre-eminently 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. R. (1936 SCC OnLine PC 20) and Stephen Seneviratne v. R. (1936 SCC OnLine PC 57), All ER at p. 49."

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21. The Supreme Court thereafter relied upon the above case of Shambu

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Nath Mehra (supra) in Nagendra Sah vs. State of Bihar , reported in (2021) 10 SCC 725 , wherein it held that 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 the said other facts, the Court can always draw an appropriate inference.

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22. In the case of Trimukh Maroti Kirkan v. State of Maharashtra , reported in (2006) 10 SCC 681 , the Supreme Court held that if an offence takes place inside the privacy of a house it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused, if the strict principle of circumstantial evidence is insisted upon by the Courts. A Judge cannot preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. It further held that 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. The Supreme Court thereafter held in paragraph 15 and 22 of the said judgment as follows :-

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“ 15 . Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent

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explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

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22 . Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.”

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23. In the case of State of Madhya Pradesh vs. Balveer Singh , reported in (2025) SCC OnLine SC 390 , the Supreme Court has held at paragraphs 86, 87, 89 & 90 as follows :

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“ 86. 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 on 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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87. 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 offers 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.

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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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89. 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 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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90. 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 countervailing 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 [Balvir Singh v. State of Uttarakhand, (2023) 16 SCC 575] and Anees v. State (NCT of Delhi) [Anees v. State (NCT of Delhi), (2024) 15 SCC 48 : 2024 SCC OnLine SC 757 : 2024 INSC 368] .]

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(emphasis supplied)

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24. No plea of alibi has been taken by the appellant that he was not present in his house at the time the deceased had died. It is also not the case of the appellant that he did not quarrel with his wife or that the deceased had not come to his house at the relevant point of time. The appellant is conspicuously silent with regard to what he did at the relevant point of time and how the deceased was found dead in his house. The appellant has also given a blanket

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denial in his cross-examination under Section 313 Cr.P.C and has not even attempted to make any explanation, to the effect that he was not at all connected with the crime in question for any reason whatsoever. The appellant not having attempted to make any explanation with regard to how the deceased had died in his house during his presence, leaves us with a doubt as to why the appellant is keeping silent.

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25. It is no doubt true that Section 106 of the Evidence Act cannot be invoked to make up the inability of the prosecution to produce evidence of circumstance pointing to the guilt of the accused. However, the question in the present case is as to whether there has been a failure on the appellant, to produce evidence explaining how the deceased died, soon after coming into the house of appellant, to stop the appellant and his wife from quarreling. Further, in the case of Wajir Khan vs. State of Uttarakhand, reported in (2023) 11

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SCR 39, the Supreme Court held that in a case based on circumstantial evidence where no eyewitness is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the accused offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.

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26. On considering all the above facts, we are of the view that though the investigation conducted by the police has been lackadaisical and the same has left out certain vital facts, the chain of circumstantial evidence forms a complete circle, which only points out to the guilt of the appellant in committing the crime of killing the deceased. The Police should have questioned the wife of the appellant on this count also. However, it appears that the same has not been done. The above being said, there is nothing to show that there was any

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previous enmity between the appellant and the deceased. In fact, the chain of events leading to the death of the deceased, goes to show that the deceased who intervened in the quarrel between the appellant and his wife as a peacemaker, ended up being the victim of the inflamed passion of the appellant, who apparently lost his power of self control when the quarrel between the appellant his wife, ended up being a quarrel between the appellant and the deceased. This is quite apparent from the evidence of PW-3, who stated that the appellant hacked the deceased following a quarrel between them.

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27. The attempt of the deceased to be a peacemaker appears to have boomeranged on the deceased, as the appellant has apparently perceived the interference of the deceased, as a grave and sudden provocation, on the married couple’s quarrel between the appellant and his wife. This sudden provocation in the heat of the quarrel between the appellant and the deceased, in our view attracts Exception-I to Section 300 IPC and as such, we are of the view that the act of the appellant while under the loss of self control, amounts to culpable homicide not amounting to murder. Consequently, we are of the view that Section 302 IPC is not attracted to the facts of this case and Section 304 Part-II IPC would be attracted to the facts of this case, as the injury appears to have been caused by a solitary blow of a sharp edged weapon on the deceased.

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28. Accordingly, we are not in agreement with the decision of the learned Trial Court in convicting the appellant under Section 302 IPC. The conviction of the appellant under Section 302 IPC is accordingly interfered with and set aside. We find the appellant guilty of culpable homicide without the intention to cause death of the deceased. We are of the view that the act of the appellant was done with the knowledge that his act would likely to cause death, but without

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any intention to cause death or to cause such bodily injuries as is likely to cause death. Accordingly, we convict the appellant under Section 304 Part-II IPC and sentence him to undergo rigorous imprisonment for 7 (seven) years, with a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for 1 (one) month. The impugned judgment and sentence are accordingly interfered with. The impugned judgment is accordingly modified to the extent indicated above.

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29. Send back the TCR.

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30. In appreciation of the assistance provide by the learned Amicus Curiae, his fee should be paid by the Assam State Legal Services authority.

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31. The appeal is accordingly modified to the extent indicated above.

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JUDGE JUDGE

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Comparing Assistant

Dhania Sabor v. the State of Assam

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Dhania Sabor v. the State of Assam

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