Chattisgarh High Court
Gorakhnath vs State Of Chhattisgarh on 13 February, 2024
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Neutral Citation
2024:CGHC:5426-DB
-1-
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRIMINAL APPEAL NO. 910 OF 2017
(Arising out of judgment dated 11.05.2017 passed in Sessions
Trial No. 63/2013 by the learned Sessions Judge, Kondagaon,
CG)
Gorakhnath S/o Ratan Singh, Aged About 43 Years
R/o Bazarpara, Kondagaon, Police Station Kondagaon,
District Kondagaon, Chhattisgarh.
---- Appellant
Versus
State Of Chhattisgarh Through Station House Officer
Police Station Kondagaon, District Kondagaon,
Chhattisgarh.
:
... Respondent
_____________________________________________________
For Appellant :- Mr. Vaibhav Shukla, Advocate.
For Respondent/State:- Mr. S. S. Baghel, Dy. Govt. Advocate.
_____________________________________________________
Division Bench
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment on Board
(13.02.2024)
Sanjay K. Agrawal, J.
1. This criminal appeal filed by the appellant-accused, under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of Neutral Citation 2024:CGHC:5426-DB -2- sentence dated 11.05.2017, passed by learned Sessions Judge, Kondagaon (C.G.) in Sessions Trial No.63/2013, whereby the appellant has been convicted for offence punishable under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.200/- and, in default of payment of fine, to undergo additional rigorous imprisonment for 3 months.
2. The case of the prosecution, in short, is that on 31.10.2012, at about 2 pm, in village Kondagaon Bazarpara, Police Station Kondagaon (CG), the appellant is alleged to have strangulated his wife Neelam to death with a scarf, thereby committed the offence of murder punishable under Section 302 of IPC. It is the case of prosecution that on the date of offence, the appellant started quarreling with his wife i.e. deceased Neelam, on the issue of cooking, thereafter, he took her to the bathroom and strangulated her to death with a scarf. Further case of the prosecution is that Golu Baghel (PW-7), on being called by the appellant, came there and found the door of bathroom bolted from inside. Therefore, he Neutral Citation 2024:CGHC:5426-DB -3- opened the door of bathroom forcefully and found deceased Neelam lying unconscious in the bathroom. The deceased was taken to R.N.T. hospital, Kondagaon in unconscious condition where she was declared dead. The matter was reported to the Police Station, Kondagaon by Anjulata (PW-1), based on which, Merg Intimation (Ex.P-1) was recorded and FIR (Ex. P-18) was registered. After Panchnama of the dead body was conducted and it was sent for postmortem examination which was conducted by Dr. Sagar Kashyap (PW-10) vide Ex. P/19 in which the cause of death is opined to be asphyxia due to hanging and the nature of death was homicidal. Memorandum statement of the appellant was recorded vide Ex. P/5, pursuant to which, scarf (Chunri) was seized vide Ex.P/6 which was sent for chemical examination to FSL along with other seized articles but the FSL report has not been brought on record for the reason best known to the prosecution.
3. After completion of investigation, the appellant was charge - sheeted for the aforesaid offence before the jurisdictional criminal court and the case was Neutral Citation 2024:CGHC:5426-DB -4- ultimately committed to the Sessions Court, for trial and its disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.
4. During the course of trial, in order to bring home the offence, prosecution examined as many as 10 witnesses and exhibited 20 documents. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, appellant-accused in support of his defence has neither examined any witness nor exhibited any document.
5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence.
Neutral Citation 2024:CGHC:5426-DB -5-
6. Mr. Vaibhav Shukla, learned counsel for the appellant would submit that the main circumstance in the present case is that the appellant and the deceased were last seen together before the commission of offence, however, the theory of last seen together has not been established beyond reasonable doubt and on the basis of last seen together, the appellant cannot be convicted as it requires corroboration. He would further submit that the main witnesses of the prosecution have not supported the case of prosecution and turned hostile, which also makes the prosecution story doubtful. As such, the impugned judgment is liable to be set aside and the appellant is entitled for acquittal on the principles of benefit of doubt.
7. Learned State counsel supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt, and the conviction of the appellant for the offence under Section 302 of I.P.C. is well merited, as such, the appeal deserves to be dismissed. Neutral Citation 2024:CGHC:5426-DB -6-
8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.
9. In the instant case, there is no direct evidence available on record and the case of prosecution is solely based on circumstantial evidence. The five golden principles which constitute the Panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116 which must be fulfilled for convicting an accused on the basis of circumstantial evidence. The relevant paragraph 153 of the said judgment reads as under: -
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
Neutral Citation 2024:CGHC:5426-DB -7- It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v.
State of Maharashtra where the following observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
Neutral Citation 2024:CGHC:5426-DB -8-
10. The trial Court has convicted the appellant by finding 7 circumstantial evidences against the appellant recorded in para-27 of the impugned judgment which are as under:
1. घटना के पूर्व आरोपी एवं उसके परिवार पर नीलम दहेज की मांग कर मारपीट कर क्रुरता करने का आरोप लगाती थी, जिसका मामला भी अदालत में पेश हुआ था, वहां दोनों पक्षों में राजीनामा हुआ, तब से मृतका नीलम आरोपी के साथ रह रही थी ।
2. घटना के ठीक पूर्व अंतिम बार आरोपी मृतका नीलम के साथ अपने घर पर था।
3. घटना स्थल पर मृतका नीलम के टू टे हुए चुड़ी के टु कड़े, बक्कल, क्लीप वगैरह बरामद हुए थे ।
4. आरोपी के साथ नीलम बेहोंशी की अवस्था में मिली, जिसे आर.एन.टी.
अस्पताल कोण्डागांव ले जाया गया ।
5. पोस्टमार्टम रिपोर्ट में मृतका नीलम के गले में रस्सी के फंदे का निशान था, नीलम की मृत्यु का कारण उसकी श्वांस गति रूकना था, पोस्टमार्टम रिपोट से मृत्यु की प्रकृति मानव वधात्मक पायी गयी ।
6. आरोपी की सूचना के आधार पर आरोपी के कब्जे से चुनरी बरामद हुई ।
7. पोस्टमार्टम करने वाले डॉक्टर की राय के अनुसार उक्त चुनरी से नीलम के गले को कसकर बांधा जाये तो नीलम की मृत्यु हो सकती थी ।
11. Now we consider the circumstances recorded by the trial Court in the light of the principles of law laid down by the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda (supra). The fifth circumstance for consideration is as to whether the death of deceased Neelam was homicidal in nature?
12. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem Neutral Citation 2024:CGHC:5426-DB -9- report (Ex. P-19) proved by Dr. Sagar Kashyap (PW-
10), which in our considered opinion is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding.
13. The first circumstance is that prior to the date of offence, there was a case lodged against the appellant for subjecting the deceased to cruelty on demand of dowry which was ultimately resolved on account of compromise between husband and wife, which in our opinion, cannot be said to be an incriminating circumstance for conviction of the appellant under section 302 of IPC.
14. Now, the next key circumstance find out by the trial Court is that the appellant and the deceased were last seen together on the date of offence. However, the trial Court in para-28 of its judgment held that the deceased was last seen along with the appellant in unconscious condition and therefore the burden of proof is on the accused as to how and what circumstances Neelam died. The Trial Court has invoked Section 106 of the Evidence Act to convict the Neutral Citation 2024:CGHC:5426-DB -10- appellant under Section 302 of IPC holding that the deceased was last seen together with the appellant and thereafter she was found in unconscious condition with the appellant.
15. Now, the question would be, whether Section 106 of the Evidence Act would be applicable or not?
16. 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."
17. 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 Neutral Citation 2024:CGHC:5426-DB -11- that the accused persons were in such a position that they could have special knowledge of the fact concerned.
18. In the matter of Shambhu Nath Mehra v. The State of Ajmer1, 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: -
"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 1AIR 1956 SC 404 Neutral Citation 2024:CGHC:5426-DB -12- 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)."
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.
19. 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 Bihar2 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 2(2021) 10 SCC 725 Neutral Citation 2024:CGHC:5426-DB -13- 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."
20. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab3, 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 3AIR 1956 SC 460 Neutral Citation 2024:CGHC:5426-DB -14- 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.
21. 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 Bihar4 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.
22. 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?
4AIR 1974 SC 778 Neutral Citation 2024:CGHC:5426-DB -15-
23. Reverting to the facts of the present case, in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, what requires consideration is whether the prosecution has been able to discharge its primary burden of proving its case beyond reasonable doubt. In the instant case, the prosecution has been able to establish the fact that the death of deceased Neelam was homicidal in nature. Further, Jagannath Thakur (PW-5) has stated that on the date of offence, on receiving information about the incident, when he went to the spot, saw the deceased lying unconscious condition near the water tank. Thereafter, the deceased was taken to RNT Hospital, Kondagaon where she was declared dead. However, there is no other evidence on record to hold that the appellant and the deceased were seen together lastly on the date and time of offence. The only evidence of Jagannath Thakur (PW-5) is that after receiving information when he went to the spot, saw the deceased lying in unconscious condition near the water tank. Apart from this, there is no evidence that the appellant and the deceased were last seen together, as such, theory of last seen together is not established beyond reasonable doubt. Even otherwise, no specific Neutral Citation 2024:CGHC:5426-DB -16- question has been asked to the appellant in his examination under Section 313 of CrPC to explain as to how and under what circumstances his wife died. Therefore, this circumstance of last seen together cannot be taken into consideration as basis for conviction in the absence of corroboration. Apart from this fact, from the spot, broken bangles, buckle etc were seized which have also not been proved. Further, the scarf which was seized from the possession of appellant and which is alleged to have used for strangulation was sent for FSL but the FSL report has not been brought on record, for the reason best known to the prosecution. In the absence of FSL report, the seizure of scarf from the possession of appellant is of no use in the light of the judgment of the Hon'ble Supreme Court in the case of Balwan Singh V. State of Chhattisgarh and another5.
24. In view of the aforesaid discussion and in light of the decision rendered by the Supreme Court in the above stated judgments, the provision contained in Section 106 of the Evidence Act would not apply in the case in hand since the prosecution has not been able to discharge its primary burden of proving its case beyond reasonable doubt. In that view of the matter, the
5. (2019) 7 SCC 781 Neutral Citation 2024:CGHC:5426-DB -17- appellant is entitled to be acquitted from the offence punishable under Section 302 of IPC on the basis of benefit of doubt.
25. Accordingly, the impugned judgment dated 11.05.2017 passed by the Trial Court convicting and sentencing the appellant for the offence under Section 302 of IPC, is hereby set aside/quashed on the basis of benefit of doubt and the appellant is acquitted from the said offence. Appellant is stated to be in jail since 04.11.2012. He be released from jail forthwith, if his detention is not required in connection with any other offence.
26. This criminal appeal, accordingly, stands allowed.
27. 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, for information and necessary action.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)
Judge Judge
Khatai