Chattisgarh High Court
Smt. Lalitabai And Another vs State Of Chhattisgarh on 12 September, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.58 of 2011
1. Smt.Lalitabai W/o Chhaganlal Satnami, aged about 30
years, R/o Bortara, Police StationGurur, Distt.Durg
(CG)
2. Smt.Rajbai Wd/o Punitram Tandon, Satnami, aged about
48 years, R/o Bortara, Police StationGurur,
Distt.Durg (CG)
Appellants
Versus
State of Chhattisgarh Through Police Station Gurur,
Distt.Durg (CG)
Respondent
For Appellants: Mr.Anmol Sharma, Advocate
For Respondent/State: Mr.Soumya Rai, Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sachin Singh Rajput
Judgment on Board
(12.9.2022)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellants herein under Section 374(2) of the CrPC is directed against the judgment of conviction and order of sentence dated 14.12.2010 passed by the Additional Sessions Judge (FTC), Balod, in Sessions Trial No.10/2010, by which the learned Additional Sessions Judge has convicted the appellants for offence under Section 302/34 of the IPC and sentenced to undergo imprisonment for life and further sentenced to fine of Rs.500/, in default of payment of fine to further 2 undergo RI for three months.
2. It is admitted fact on record that appellant No.2 Smt.Rajbai is wife of the deceased and appellant No.1 Smt.Lalitabai is daughter of deceased Punitram Tandon. It is the case of the prosecution that two appellants herein being daughter and mother in furtherance of common intention caused death of Punitram Tandon on 16.12.2009 at 5 a.m. and thrown his dead body in the courtyard of their house and thereby committed the offence. It is further case of the prosecution that appellant No.1Smt.Lalitabai (daughter of the deceased) on 16.12.2009 informed to the Police Station Gurur about death of Punitram Tandon, against which, Merg No.109/2009 was registered. Spot map was prepared by patwari vide Ex.P8. Investigating officer also prepared spot map vide Ex.P11. Inquest was conducted vide Ex.P7 on the recommendation of panchas. Dead body of deceased Punitram Tandon was sent for postmortem to Community Health Center, Gurur, where Dr.T.R.Thakur (PW10) conducted postmortem vide Ex.P18 and opined that cause of death was due to multiple head injuries leading to crushing of vital organ and death was homicidal in nature. Thereafter FIR was registered vide Ex.P21. On the basis of memorandum statement of appellant No.1Smt.Lalitabai vide Ex.P1, pestle (musal) was recovered vide Ex.P2 and also recovered terricot pink sari and one towel 3 vide Ex.P3. Other articles were also seized. Seized articles were sent for query to Dr.T.R.Thakur (PW10), who gave his opinion vide Ex.P19 and recommended for FSL examination to ascertain as to whether seized articles stain blood or not. Though the articles were sent for FSL examination vide Ex.P24, but FSL report has not been brought on record by the prosecution. Statements of the witnesses were recorded under Section 161 of the CrPC and after due investigation, the appellant was chargesheeted before the Judicial Magistrate First Class, Balod, who in turn, committed the case to the Court of Session, Durg, from where the Additional Sessions Judge (FTC), Balod received the case on transfer for trial. The accused / appellants abjured the guilt and entered into defence.
3. In order to bring home the offence, the prosecution examined as many as 12 witnesses and exhibited 25 documents Exs.P1 to P25. On behalf of the defence, three witnesses namely, appellants No.1 and 2 and Mehtaruram Jangde (DW3) were examined and they brought 29 documents as Exs.D1 to D29 in their support. They have clearly stated that in their statement that on account of previous dispute between father of appellant No.1 and Heeralal, they have falsely been implicated.
4. The trial Court upon appreciation of oral and 4 documentary evidence available on record, by its judgment dated 14.12.2010 convicted the appellants for offence under Sections 302/34 of the IPC and sentenced them for the period as mentioned in opening paragraph of this judgment, against which, this criminal appeal has been preferred.
5. Mr.Anmol Sharma, learned counsel for the appellants, would submit that memorandum statement of appellant No.1Smt.Lalitabai (Ex.P1) and seizure (Ex.P2) have been found proved by the prosecution only on the testimony of investigating officer M.D.Tiwari (PW12) as the trial Court has not found testimonies of Parasram Kosriya (PW1) and Ramesh Kumar Patel (PW6) worthy reliable. He would further submit that on seized articles i.e. pestle (musal), sari and towel, blood has not been found as FSL report has not been brought on record and once recovery is not proved beyond reasonable doubt and even blood has not been found on seized articles, recovery is of no use for the prosecution in light of judgment of the Supreme Court in he matter of Balwan Singh v. State of Chhattisgarh and another1. He would also submit that merely on the basis that the appellants and the deceased were living in the same house on the fateful day, the appellants have been convicted for offence under Section 302 of the IPC ignoring the fact that 1 (2019) 7 SCC 781 5 dead body was found in courtyard, which is open place and accessible to all, which is apparent from the statements of Parasram Kosriya (PW1) and Ramesh Kumar Patel (PW6), witnesses of memorandum & seizure and more particularly that the prosecution has failed to prove the facts to attract Section 106 of the Indian Evidence Act, 1872 and as such, Section 106 of the Evidence Act is not invocable at all. He would submit that defence taken by the appellants are false and that is incriminating piece of evidence held by trial Court. Therefore, the appeal deserves to be allowed by setting aside their conviction and sentence.
6. On the other hand, Mr.Soumya Rai, learned Panel Lawyer for the respondent/State, would support the impugned judgment and submit that the prosecution has been able to prove seizure of pestle (Ex.P2) consequent upon the memorandum statement of appellant No.1 vide Ex.P1, which has duly proved by investigating officer M.D.Tiwari (PW12) and furthermore, Section 106 of the Evidence Act has rightly been held applicable in the instant case. He would further submit that giving false explanation and taking false defence has rightly been relied upon by the trial Court. As such, the appeal deserves to be dismissed.
7. We have heard learned appearing for the parties and considered their rival submissions made hereinabove 6 and also went through the records with utmost circumspection.
8. The trial Court has held the death of deceased Punitram Tandon to be homicidal in nature after appreciating oral and documentary evidence available on record, particularly taking into account the statement of medical expert Dr.T.R.Thakur (PW10) and postmortem report (Ex.P18). After going through the records and after going through the medical evidence and postmortem report (Ex.P18), we are of the considered opinion that the trial Court is absolutely justified in relying upon the postmortem report. The finding recorded by the trial Court that death of the deceased to be homicidal in nature is a finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding.
9. The next question for consideration would be, whether the trial Court has rightly held that pursuant to memorandum statement of appellant No.1 (Ex.P1), pestle, sari and towel have been seized vide Exs.P2 and P3, which connects the appellants in offence in question.
10.It is not in dispute that pestle (musal) has been seized from courtyard where the appellants and the deceased used to stay in the house. Incident is of 7 16.12.2009 and pestle has been recovered pursuant to memorandum statement of appellant No.1Smt.Lalitabai on 18.1.2010. There is delay of 1 month and 2 days in recovery of pestle (musal) pursuant to memorandum statement of the appellant on 18.1.2010. A careful perusal of statements of Parasram Kosriya (PW1) and Ramesh Kumar Patel (PW6) would show that pestle (musal) has been recovered from barn, which is open place and anyone can enter in that place as it had no doors and easily accessible to one & all and memorandum & seizure have not been supported by these two witnesses except investigating officer M.D.Tiwari (PW12). Furthermore, in query report (Ex.P19), some stains were noticed by Dr.T.R.Thakur (PW10) and it was recommended for FSL examination, though it was sent for FSL examination, but unfortunately, FSL report was not brought on record. As such, it cannot be held that pestle (musal), which is said to be weapon for the offence, had stains with blood.
11. The Supreme Court in the matter of Balwan Singh (supra) held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group 8 is not proved because of disintegration of blood. It was observed as under: "23. From the aforementioned discussion, we can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match."
12.In the instant case, admittedly, on pestle (musal) and other articles, no blood was found much less human blood. Therefore, following the dictum of the Supreme Court in the matter of Balwan Singh (supra), it would be difficult for the Court to rely upon the aspect of recovery of the weapons and as such, mere recovery even if it is held to be proved by the statement of investigating officer M.D.Tiwari (PW12) does not help the case of the prosecution in absence of FSL report holding that pestle contains blood much less human blood.
13.The next circumstance that has been found established and proved by the prosecution is that the appellants and the deceased were living in the same house on the date of offence and therefore, Section 106 of the Indian Evidence Act would be attracted, which has been questioned by the learned counsel for the appellants 9 that primary duty of the prosecution to prove the offence beyond reasonable doubt has not been established and therefore, Section 106 of the Indian Evidence Act would not be attracted.
14.Section 106 of the Indian Evidence Act, 1872, states as under: "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."
15.This provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned.
16.In the matter of Shambhu Nath Mehra v. The State of Ajmer2, their Lordships of the Supreme Court have held that the general rule that in a criminal case the 2 AIR 1956 SC 404 10 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: "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. 19363 ER 36 AT P. 49 (B)."
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 11 prosecution and never shifts.
17.The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar3 in which it has been held by their Lordships of the Supreme Court as under: "22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.
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."
18.Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab 4, while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea 3 (2021) 10 SCC 725 4 AIR 1956 SC 460 12 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.
19.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 5 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.
20.Now, the question is, whether the prosecution has discharged its initial or general burden or primary duty of proving the guilt of the accused beyond reasonable doubt ?
5 AIR 1974 SC 778 13
21.A careful perusal of the impugned judgment would show that the trial Court has held that death of the deceased was homicidal in nature. Furthermore, the trial Court has further held that recovery of pestle, bloodstained sari and towel has been found proved. We have not accepted such a finding in preceding paragraphs and motive has not been found proved and even defence of the appellants that they have falsely been implicated by conspiring as there was dispute between father of appellant No.1 and Heeralal (PW11), which has not been investigated by the trial Court and furthermore, the appellants and the deceased both were living in the same house on the fateful day and dead body of the deceased as per spot map (Ex.P8) was found in the courtyard / open place and even Parasram Kosriya (PW1) and Ramesh Kumar Patel (PW6) have clearly stated that dead body of deceased Punitram was found in the courtyard behind the house of the appellants, which was open place having no doors and accessible to one & all. As such, the prosecution has failed to discharge its primary burden of proving its case beyond reasonable doubt. As held by their Lordships of the Supreme Court in Sawal Das (supra), Section 106 of the Evidence Act can be applied only when the prosecution has led evidence which if believed will sustain conviction, or makes out a prima facie case, that the question arises of considering 14 facts of which the burden of proof may lie upon the accused.
22.The trial Court has recorded a finding that the defence witnesses have given contradictory statement and that would be an incriminating piece of evidence to connect the appellants in crime in question, which in our opinion cannot be accepted. If the defence version is not acceptable, then it has to be rejected, but giving false explanation would not be an incriminating circumstance to connect the appellants in offence in question.
23. As such, in our considered opinion, the prosecution has failed to discharge its primary burden of proving its case beyond reasonable doubt and merely on the basis of alleged recovery which has not been supported by independent witnesses Parasram Kosriya (PW1) and Ramesh Kumar Patel (PW6) and in absence of FSL report, Section 106 of the Evidence Act cannot be invoked and the appellants cannot be held guilty of the offence under Section 302 of the IPC. In a case of 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 15 ground to convict the accused.
24. In view of the aforesaid analysis, we are unable to sustain conviction and sentence imposed upon the appellants under Section 302/34 of the IPC. Accordingly, the impugned judgment dated 14.12.2010 passed in Sessions Trial No.10/2010 by the Additional Sessions Judge (FTC), Balod is hereby set aside. The appellants are acquitted of the charge under Section 302/34 of the IPC. They are on bail. They need not surrender. However, their bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC.
25. Criminal appeal is allowed to the extent indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
B/