Chattisgarh High Court
Bhuneshwar Sahu vs State Of Chhattisgarh on 12 May, 2022
Author: Rajani Dubey
Bench: Sanjay K. Agrawal, Rajani Dubey
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No.79 of 2015
Judgment Reserved on : 06.04.2022
Judgment Delivered on : 12.05.2022
Bhuneshwar Sahu, S/o Janaram Sahu, Aged About 24 Years, R/o
Village Singarpur, P. S. Bhatapara (Rural) Distt. Baloda Bazar,
Chhattisgarh
---- Appellant
Versus
State of Chhattisgarh through P. S. Bhatapara (Rural) Distt. Baloda
Bazar, Chhattisgarh
---- Respondent
For Appellant Mr. Rajesh Jain & Ms. Kiran Jain, Advocates
For Respondent Ms. Madhunisha Singh, Dy. AG
Hon'ble Justice Shri Sanjay K. Agrawal
Hon'ble Justice Smt. Rajani Dubey
C A V Order
Smt. Rajani Dubey, J.
1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 28.08.2014 passed by the learned Additional Session Judge, Bhatapara, District Baloda Bazar-Bhatapara, in ST No.31/2013, whereby the appellant has been convicted under Sections 302 & 201 of IPC and sentenced to undergo life imprisonment and RI for 4 years, respectively, with default stipulations.
2. Case of the prosecution, in short, is that on 19.08.2013 at about 8 2 am, a merg intimation was lodged by one Ashwini Sahu that on 19.08.2013 at 1:30 am, in Village Singarpur, Police Station Bhatapara, while the deceased Sewati Bai was sleeping with her children, she died sudden death due to snake bite and the dead snake was kept there. On the basis of the said report, Merg No.70/2013 was registered at Police Station Bhatapara (Gramin).
3. During the investigation of merg, memorandum of accused was recorded vide Ex-P/7 and seizure of bamboo basket and pesticide was made vide Ex-P/4 & P/5. Dr. D. P. Verma (PW-6), who conducted postmortem of deceased Sewati Bai, opined that death occurred due to asphyxia and asphyxia can be either by compression of neck or by poison. The accused was arrested vide arrest memo (Ex-P/6) and spot map was prepared by Patwari vide Ex-P/8. Panchnama was prepared vide Ex-P/9. Seized articles were sent for chemical examination to FSL and according to FSL report (Ex.P.14), Phorate pesticide was found in viscera of deceased. After completion of investigation, charge sheet was filed before the learned JMFC, Bhatapara, who in turn, committed the case to the Court of for hearing and disposal in accordance with law and accordingly, charges were framed under Sections 302 & 201 of IPC against the appellant.
4. Before the Trial Court, the prosecution examined as many as 9 witnesses. Statement of accused was recorded under Section 313 of Cr.P.C and accused examined only one witness in his defence namely Roopcharan (DW-1). After appreciating the oral and documentary evidence available on record, the Trial Court convicted the appellant for the charges punishable under Sections 302 & 201 of 3 IPC. Hence, this appeal.
5. Learned counsel for the appellant submits that the Trial Court framed charges against the appellant on the ground that he committed murder of his wife by strangulation, whereas the FSL report shows that poison was found in the viscera of the deceased, therefore, the charges framed against the appellant are not proved. He further submits that the chain of circumstances is also not complete and the circumstantial evidence adduced by the prosecution is insufficient to hold the appellant guilty for the alleged offence. There are also omissions and contradictions in the statements of the other prosecution witnesses and there is no eye witness in the present case, as such the conviction of the appellant is not sustainable. He also submits that the deceased died of snake bite and the dead snake was also found at the place of occurrence, which shows that the death of the deceased has occurred due to snake bite. Therefore, the impugned judgment of conviction and sentence may be set aside and the appellant be released.
6. On the other hand, learned State counsel supporting the impugned judgment of conviction and order of sentence submits that the present is a case of house murder and the defence cause of death due to snake bite has been taken just to escape from the clutches of law. The conviction of the appellant is strictly in accordance with law and there is no infirmity in the same. He further submits that a very improbable defence has been taken by the appellant that the deceased has died due to snake bite. He being the only inmate with the deceased in the house, he was under obligation to offer plausible and probable explanation, which he has otherwise failed to do so, as 4 such the prosecution has proved its case against the appellant. Therefore, the impugned judgment of conviction and sentence has rightly been passed.
7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the material available on record.
8. This is admitted fact that the deceased was wife of appellant and at the time of incident, she was residing along with the appellant and her children in the house, however, there is no eye witness version in the present case and the entire case is based on the circumstantial evidence.
9. In order to address the submission made by learned counsel for the appellant that though there is allegation against the appellant that he has committed murder of his wife by strangulation, but the FSL report shows that Phorate organophosphorus pesticide was found in the viscera of the deceased, therefore, the charge of committing murder framed against him is not proved, it is relevant to refer Section 215 of CrPC, which reads as under:-
"215. Effect of errors -- No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."
10. It is well settled principle of criminal justice that charges are framed on the basis of prima facie material which are shown in the charge sheet and other documents. In the present case, the Trial Court framed charges against the appellant under Section 302 of IPC for murder of his wife, as such no material defect in framing the charge 5 causes prejudice to the accused. (See : Willie (William) Slaney vs State of Madhya Pradesh1.
11. Now, the question which falls for consideration by this Court is whether the death of deceased occurred in the house when the appellant was present with her ?
12. Dindayal Sahu (PW/1) has stated that when he was in deep sleep, at about 2.45 am, Janaram, father of the appellant, and 4-5 persons came to him and informed that the wife of appellant suffered snake bite. The father of appellant also informed to this witness that he has killed the snake. Thereafter he (PW/1) went to the house of appellant where he saw the dead body of deceased lying on the cot and a dead snake was also lying in the corner.
13. Anand Ram Sahu (PW/2), brother of the deceased, has stated that he was informed by the appellant that his sister (deceased) suffered snake bike. Upon receiving the information, he went to the house of his sister where he saw the dead body of deceased lying on a cot. From the aforesaid evidence of prosecution witnesses as also from inquest (Ex.P/2) and spot panchanama (Ex.P/36), it is established that the death of deceased took place in the house when the appellant was with her.
14. The next question which falls for consideration by this Court is whether the deceased died due to snake bite?
15. In this case, the father of the appellant informed Dindayal Sahu (PW/1) that his daughter-in-law Sewti Bai died of snake bite. After receiving the information, this witness (PW/1) went to the house of 1 AIR 1956 SC 116 6 appellant where he saw the dead body of deceased lying on a cot This witness in para 1 of his examination-in-chief has clearly stated that he did not find any sign of snake bite on the body of the deceased. Further, this witness in para 5 also stated that the appellant had told the police that he strangulated the neck of the deceased by cushion after administering poison.
16. Dr. D. P. Verma (PW/6), who conducted postmortem on the body of deceased and gave his report Ex.P/10, has stated in court statement that froth containing blood was coming from right side of face, five small antemortem contusions were present on right upper part of neck, one contusion on left side of neck in the size of 2 x 5 cm and two punctured wounds were on medial aspect of lower part of right leg. The autopsy surgeon opined the cause of death of deceased to be asphyxia due to compression of neck or consumption of poisonous substance. The autopsy surgeon in his entire court statement and in the postmortem report has not stated anything about the snake bite and has also not found any sign of snake bite. That apart, according to the FSL report (Ex.P/14), in viscera of the deceased, Phorate organophosphorus pesticide was found .
17. Mangal (PW/3), who is a snake charmer, though turned hostile, has stated in para 2 of his statement that the appellant had come to him and purchased one snake 'Gouha Domi' species for Rs.1900/- on the pretext of showing it in Leela Exhibition, but in cross-examination he has turned hostile. Thus, from the material collected by the prosecution and in view of evidence of aforesaid prosecution witnesses, it is proved that the death of deceased was not due to snake bite but it was asphyxia due to compression of neck and dead 7 body was found inside the room where the deceased was sleeping with the appellant but still no reasonably convincing explanation has been offered by him in his statement recorded under Section 313 of Cr.P.C. as to how the deceased died, instead the defence was taken by the appellant that the deceased was perplexed, as her brother was not returning the money which was given to him by her after selling the ornaments.
18. From the material collected by the prosecution, it is proved that the death of the deceased was homicidal in nature and the dead body was found inside the room where he was sleeping with the deceased but still no reasonably convincing explanation has been offered by him in his 313 Cr.P.C. statement as to how the deceased died. All that apart, there is absolutely no substantive piece of evidence on record to suggest that any third person entered their room and caused injuries to the deceased.
19. In case where house murder is t2he issue, heavy burden is on the shoulders of the accused to explain as to under what circumstances the deceased died. While dealing with the matter involving the murder committed inside the house it has been held by the Apex Court in the matter of Trimukh Maroti Kirkan v. State of Maharashtra2 as under:-
"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, 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, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man 2 (2006) 10 SCC 681 8 does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions (1944 AC 315) - quoted with approval by Arijit Pasayat, J in State of Punjab v. Karnail Singh (2003) 11 SCC 271). 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 held. 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. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."
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 explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offeirng 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."
20. Further, in the matter of State of Rajasthan v. Thakur Singh 3, it has been held by the Apex Court as under:
"17. In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681) this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said: (SCC p. 694, para 22) "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 3 (2014) 12 SCC 211 9 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."
18. Reliance was placed by this Court on Ganeshlal v. State of Maharashtra {(1992) 3 SCC 106)} in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife.
19. Similarly, in Dnyaneshwar v. State of Maharashtra {(2007) 10 SCC 445} this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.
20. In Jagdish v. State of MP {(2009) 9 SCC 495} this Court observed as follows: (SCC 503, para 22) "22... It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt."
21. More recently, in Gian Chand v. State of Haryana {(2013) 14 SCC 420} a large number of decisions of this Court were referred to and the interpretation given to Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. One of the decisions cited in Gian Chand is that of State of WB v. Mir Mohammad Omar which gives a rather telling example explaining the principle behind Section 106 of the Evidence Act in the following words: (Mir Mohammad Omar case (2000) 8 SCC p 393 para 35) "35. During arguments we put a question to the learned Senior Counsel for the respondents based on hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people 10 and the kidnappers disappeared with the prey, what would be the normal inference if a mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. The learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise."
21. The Apex Court in the matter of Kalu alias Laxminarayan vs State of Madhya Pradesh4 has held as under:-
14. In Tulshiram Sahadu Suryawanshi and Ors. vs. State of Maharashtra, (2012) 10 SCC 373, this Court observed:
"23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it 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. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar.
"38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to 4 (2019) 10 SCC 211 11 establish certain facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra v. State of Ajmer the learned Judge has stated the legal principle thus:
'11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 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 word "especially" stresses that. It means facts that are preeminently or exceptionally within his knowledge."
15. In Trimukh Maroti Kirkan vs. State of Maharashtra, 2006 (10) SCC 681, this Court was considering a similar case of homicidal death in the confines of the house. The following observations are considered relevant in the facts of the present case:
"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, 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, as noticed above, is insisted upon by the courts. A judge does not 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. (See Stirland v. Director of Public Prosecutions -- quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh). 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. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) 12 appended to this section throws some light on the content and scope of this provision and it reads:
"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."
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 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.
Xxxxxxxx
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."
16. In view of our conclusion that the prosecution has clearly established a prima facie case, the precedents cited on behalf of the appellant are not considered relevant in the facts of the present case. Once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under Section 313, Cr.P.C. with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased.
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22. In light of the above legal position flowing from the judgments of the Supreme Court, it is clear that in the present case, the prosecution has proved that the deceased died by an unnatural death in the room occupied by her and the appellant. The cause of unnatural death was known to appellant. There is no evidence that anybody else had entered into the room or could have entered the room. The appellant falsely informed his family members and his neighbors and Police that death was taken place due to snake bite. It is also proved by the prosecution that the conduct of the appellant is very suspicious. He bought a snake before the incident and 2 postmortem puncture wounds were also found in the body of the deceased, but no explanation has been offered by the appellant in this regard that how these two puncture wounds were present in the body of the deceased when she did not die of snake bite. The appellant has given false explanation that the deceased died due to snake bite, whereas it is proved by the prosecution that with all preparation, murder was committed by the appellant. The appellant has also not proved this fact that how in postmortem, two puncture wounds were present in the body of the deceased when snake did not bite her. Thus, the prosecution has clearly established a case against the appellant and once the prosecution establishes a prima facie case, the appellant was obliged to furnish some explanation under Section 313 of CrPC with regard to circumstances under which the deceased met an unnatural death inside the house. So we find that the finding of the learned Trial Court is based on proper appreciation of oral and documentary evidence available on record and law as well and justified in convicting the appellant herein. We do not find any merit in this appeal.
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23. The appeal being devoid of any substance is liable to be and is hereby dismissed. Judgment impugned is affirmed. Being already inside, no order in respect of arrest etc. of the accused is necessary.
Sd/- Sd/-
Sanjay K. Agrawal Rajani Dubey
Judge Judge
Nirala