Chattisgarh High Court
Sunil @ Bhondu vs State Of Chhattisgarh on 10 October, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 398 of 2012
{ Arising out of the judgment dated 2.4.2012 passed in Session Trial
No.140/2010 by the Fourth Additional Sessions Judge, Bilaspur (CG) }
Sunil @ Bhondu, aged 22 years, S/o Ramesh Patel, R/o Village
Nirtu , P.S. Sarkanda, Bilaspur, Tahsil and District Bilaspur (CG)
---- Petitioner
Versus
State Of Chhattisgarh Through the Police Station Sarkanda
Bilaspur, District Bilaspur (CG)
---- Respondent
For Appellant Mr. Ritesh Verma, Advocate
For Respondent /State Mr. Sudeep Verma, Dy. GA and Mr. Animesh
Tiwari, Dy. AG
DIVISION BENCH
Hon'ble Shri Sanjay K. Agrawal &
Hon'ble Shri Deepak Kumar Tiwari, JJ.
Judgment on Board 10.10.2022 Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant herein under Section 374(2) of the Code of Criminal Procedure is directed against the judgment of conviction recorded and sentence awarded by the learned Fourth Additional Sessions Judge, Bilaspur (CG), by which, he has been convicted for the offence under Section 302 of the IPC and sentenced to undergo 2 imprisonment for life and further sentenced to pay a fine of Rs.100/-, in default, to further undergo additional imprisonment for one month.
2. Case of the prosecution, in brief, is that on 5/4/2009, at about 1:00 am, the appellant compelled deceased Kavita Patel to marry him and also compelled her to consume insecticide and thus, he abetted her to commit suicide. The appellant also tried to strangulate the deceased and thereby, he committed an offence under Section 306 and in alternative, an offence under Section 302 of the IPC. Further case of the prosecution is that the appellant and the deceased, both were having a love affair, but the marriage of the deceased was settled by the father of the deceased Navratri Lal Patel (PW-1) with some other person and the date of marriage was also fixed for 22.4.2009. In order to make arrangement for the marriage, the father and brother of the deceased had gone to village Amora on 5.4.2009. On the fateful day, deceased Kavita Patel was sleeping with her sister Savita Bai (PW-7). At late night i.e. at about 1:00 AM, when Savita Patel woke up, she could not find her sister Kavita Patel (deceased) sleeping next to her, on which, she immediately informed the fact of missing of her sister to her mother Krishna Bai (PW-2). Thereafter, on a search being made by Savita Patel and Kavita Bai, the dead body of Kavita Patel was found in the courtyard of one Basant Patel. The appellant was also found lying unconscious near the dead body of the deceased. Thereafter, on the next day, the deceased was brought to the 3 CIMS Hospital, Bilaspur, from where, the information regarding the death of the deceased was sent to the concerned Police Station, on which, Thaleshwar Prasad Soni, Assistant Sub- Inspector (PW-11) registered the merg intimation vide Ex.P/10, prepared the inquest vide Ex.P/6 and thereafter, the dead body was sent for the postmortem examination, which was conducted by Dr. Dharmendra Kumar (PW-13). Initially, the Autopsy Surgeon opined that the cause of death is cardio- respiratory failure but thereafter, he reserved his opinion for ascertaining the cause of death after receipt of the viscera report. Hence, the viscera was preserved for chemical analysis. The viscera report dated 22.2.2012, though not exhibited, has been brought on record. Article A and B contained viscera of lungs, heart, liver, spleen, kidney + stomach, small intestine, large intestine, Article A, B, D, E contained organophosphorus insecticide "Triazophos" and Article F contained organophosphorus insecticide "Triazophos" and lethal insecticide Deltamathrin. During merg enquiry, from the place of the incident, the remains of the vomited substance having the smell of insecticide, one box of sweets and other articles were seized vide Ex.P/4. Plain soil and blood stained soil was also seized from the place of occurrence.
3. In pursuance to the statements of the relatives of the deceased and on the basis of suspicion that since the appellant wanted to marry the deceased and on her refusal, the appellant strangulated, administered poison and caused her murder, FIR- 4 Ex.P/20 was registered.
4. After usual investigation, the accused/appellant was charge-
sheeted for offence under Section 306 of the IPC and in alternative under Section 302 of the IPC and the same was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions from where the Fourth Additional Sessions Judge, Bilaspur, received the case on transfer for hearing and disposal in accordance with law.
5. The accused/appellant abjured the guilt and entered into witness. In order to bring home the offence, the prosecution examined as many as 18 witnesses and exhibited 20 documents. The defence has examined none and no document has been exhibited.
6. The trial Court upon appreciation of oral and documentary evidence on record, proceeded to convict and sentence the appellant under Section 302 of the IPC in the manner mentioned in the opening paragraph of the judgment against which the instant appeal under Section 374 (2) of the Cr.P.C. has been preferred.
7. Mr. Ritesh Verma, learned counsel for the appellant, would submit as under :
(i) The trial Court has simply held that too half heartedly that the death of deceased Kavita Patel was homicidal in nature as there was ligature mark on the neck of the deceased. The 5 postmortem report would show that superficial ligature mark was found over the neck of the deceased and that her nails had turned blue, which shows that the death may have occurred due to poisoning. As such, no definite opinion of homicidal death has been given by the trial Court for convicting the accused/appellant under Section 302 of the IPC.
(ii) The trial Court after holding the death to be homicidal in nature, did not find any evidence against the appellant and shifted the burden of proof on the appellant to explain as to under what circumstances the deceased died having ligature marks on her neck, which he was required to explain in his defence, whereas, it was the burden of the prosecution to adduce legal evidence to prove that it is the appellant, who is the perpetrator, and the chain of circumstances should have pointed towards the guilt of the accused.
(iii) As regards motive, love affairs between the accused and the deceased has been taken as a strong incriminating circumstantce against the appellant, which is only a weak piece of evidence. Since there is no strong motive, the appellant cannot be convicted that too for an offence under Section 302 of the IPC, therefore, the conviction recorded and sentence awarded deserve to be set-aside.
8. Mr. Sudeep Verma, learned Dy. Government Advocate would support the impugned judgment and submit that the trial Court has clearly recorded that the death of Kavita Patel was 6 homicidal in nature and thereafter, the trial Court has rightly shifted the burden upon the accused to explain to as to under what circumstances the deceased died, which he was required to explain under Section 313 of Cr.P.C. and Section 106 of the Evidence Act, 1872 (for brevity "the Indian Evidence Act"). He submits that the motive is strong and the incriminating circumstance has been proved against the appellant and thus, the prosecution has been able to bring home the offence beyond reasonable doubt and the appellant has been rightly convicted for the aforesaid offence and as such, the appeal deserves to be dismissed.
9. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the records with utmost circumspection.
10. Admittedly, the appellant has not been convicted for offence under Section 306 of the IPC, for which he was charged but he has been convicted under Section 302 of the IPC. In order to convict an accused for an offence under Section 302 of the IPC, it is the first and foremost duty of the prosecution to prove that the death of the deceased was homicidal in nature (See: Madho Singh Vs. State of Rajasthan1).
11. The trial Court has recorded a finding that the death of the deceased was homicidal in nature but the said finding has been recorded half heartedly, as firstly, the trial Court, in para 20 of
1.(2010) 15 SCC 588) 7 its judgment has held that Navratri Lal Patel (PW-1), Krishna Bai (PW-2), Shiv Shankar (PW-3), Ramkumar Patel (PW-4) and Savita Bai (PW-7) have expressed the possibility of administering poison to the deceased and as per the FSL report dated 22.2.2012 also, organophosphorus insecticide "Triazophos" and organophosphorus insecticide "Triazophos" and lethal insecticide "Deltamethrin" were found from the viscera recovered and hence, the trial Court has held that the poisoning may be one of the reasons for death of the deceased. Furthermore, in para 21 of the judgment, the trial Court has held that since there is ligature mark on the neck, the death of the deceased is homicidal in nature and thereafter, it shifted the burden on the appellant to prove as to under what circumstances, Kavita Patel (deceased) died. In para 23 of the judgment, the strong motive on the part of the appellant has been found established stating that he was having a love affair with the deceased and since the marriage of the deceased was fixed with some other person, the appellant committed the murder of the deceased. The trial Court in para 24 found the following circumstances conclusively established by the prosecution :
"24- ------- ------- --------
1- vfHk;qDr rFkk e`rdk dfork iVsy ds e/; izse
laca/k gksuk-
2- e`rdk dfork iVsy dk mldh e`R;q ds 20 fnu
i'pkr~ fookg gksuk-
3- vfHk;qDr dk e`rdk dfork iVsy ds lkFk clar
8
dh ckM+h esa csgks'kh dh voLFkk esa ik;k tkuk- 4- ?kVuk LFky ls dhVuk'kd inkFkZ rFkk ,d pkdw ik;k tkuk-
5- e`rdk dfork iVsy ds xys ij fyaxspj ekdZ
rFkk FkkbjkbM cksu ij d.V;wtu ik;k tkuk-
6- ekSds ls ftu dhVuk'kd inkFkksZa dks tIr fd;k
x;k os dhVuk'kd inkFkksaZ dk e`rdk dfork iVsy ds
fcljk esa ik;k tkuk-"
12. In the last paragraph of the judgment, the trial Court held that the prosecution has established that the deceased died due to poisoning as well as on account of strangulation.
13. Now, the following questions arise for consideration:
1. Whether the trial Court was justified in holding that the death of the deceased was homicidal in nature ?
2. Whether the appellant committed the death of the deceased and whether the motive of the offence has been proved?
Re. Reference to Question No.1 & 2 : since the questions are interlinked, it is being considered simultaneously.
14. The trial Court has firstly recorded a finding in para 20 of its judgment that as apprehension has been expressed by Navratri Lal Patel (PW-1), Krishna Bai (PW-2), Shiv Shankar (PW-3), Ramkumar Patel (PW-4) and Savita Bai (PW-7) and since in the postmortem report, it was found that the nails of the deceased turned blue and as per the FSL report also, Article A, B, D, E contained organophosphorus insecticide "Triazophos", Article F 9 contained organophosphorus insecticide "Triazophos" and lethal insecticide "Deltamethrin", there is a possibility that the death of the deceased might have occurred due to poisoning.
15. Now, the next question is, whether the prosecution has been able to prove that it is the appellant, who has caused the death of the deceased by poisoning.
16. The law in this regard is well settled. In the matter of Anant Chintaman Lagu Vs. The State of Bombay 2, their Lordships of the Supreme Court have laid down the parameters to be established by the prosecution in case of murder by poisoning and it has been held that the prosecution must establish in a case of poisoning that the death took place by poisoning; the accused had the poison in his possession; and that the accused had an opportunity to administer the poison to the deceased. In the aforesaid matter, the following has been observed by their Lordships :
"The prosecution must establish in a case of poisoning
(a) that death took place by poisoning; (b) that the accused had the poison in his possession; and (c) that the accused had an opportunity to administer the poison to the deceased. Though these three propositions must be kept in mind always, the sufficiency of the evidence direct or circumstantial, to establish murder by poisoning will depend on the facts of each case. If the evidence in a particular case does not justify the inference that death is the result of poisoning because of the failure of the prosecution to
2.AIR 1960 SC 500 10 prove the fact satisfactorily, either directly or by circumstantial evidence, then the benefit of doubt will have to be given to the accused person. But if circumstantial evidence, in absence of direct proof of the three elements, is so decisive that the court can unhesitatingly hold that death was a result of administration of poison (though not detected) and that the poison must have been administered by the accused person, then the conviction can be rested on it. "
17. Thereafter, in the matter of Sharad Birdhichand Sarda Vs. State of Maharashtra3, which was a case of cyanide poisoning, for which, the husband of the deceased was tried for murder, their Lordships of the Supreme Court stressed that the court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction. The following was thus held in para 165 :
"165 So far as this matter is concerned, in such cases the court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction:
(1) there is a clear motive for an accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, (3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to the deceased."
3.(1984) 4 SCC 116 11
18. The principle of law laid down by the Supreme Court in Anant Chintaman Lagu (supra) and Sharad Birdhichand Sarda (supra) was subsequently followed in the matter of Bhupinder Singh Vs. State of Punjab4, in which, it was held that even if there is failure of the prosecution to prove the possession of poison with the accused, the same is not fatal, if the prosecution clearly proves that it is a case of circumstantial evidence. The following was thus been held in para 26 & 27 :
"26.The poison murder cases are not to be put outside the rule of circumstantial evidence. There may be obvious very many facts and circumstances out of which the Court may be justified in drawing permissible inference that the accused was in possession of the poison in question. There may be very many facts and circumstances proved against the accused which may call for tacit assumption of the factum of possession of poison with the accused. The insistence on proof of possession of poison with the accused invariably in every case is neither desirable nor practicable. It would mean to introduce an extraneous ingredient to the offence of murder by poisoning. We cannot, therefore, accept the contention urged by the learned counsel for the appellant. The accused in a case of murder by poisoning cannot have a better chance of being exempted from sanctions than in other kinds of murders. Murder by poisoning is run like any other murder. In cases where dependence is wholly on circumstantial evidence, and direct evidence not being available, the Court can legitimately draw from the circumstances an inference on any matter one way or the other.
4.(1988) 3 SCC 513 12
27. The view that we have taken gets support from the decision of this Court in Ananth Chintaman Laguy v. The State of Bombay, A.I.R. 1960 S.C. 500 where Hidayatullah, J., has given an anxious consideration to the three propositions laid down in Dharambir Singh case. The learned Judge did not consider them as invariable criteria of proof to be established by the prosecution in every case of murder by poisoning. The learned Judge said (at p. 519-520):
It is now necessary to consider the arguments which have been advanced on behalf of the appellant. The first contention is that the essential ingredients required to be proved in all cases of murder by poisoning were not proved by the prosecution in this case. Reference in this connection is made to a decision of the Allahabad High Court in Mt. Gajrani v. Emperor. AIR 1933 All 394 and to two unreported decisions of this Court in Chandrakant N Nyalchand Seth v. The State of Bombay, Criminal Appeal No. 120 of 1957 decided on February 19, 1958 and Dharambir Singh v. The State of Punjab, Criminal Appeal No. 98 of 1958, decided on 4.11.1958. In these cases, the Court referred to three propositions which the prosecution must establish in a case of poisoning; (a) that death took place by poisoning; (b) that the accused had the poison in his possession, and (c) that the accused had an opportunity to administer the poison to the deceased. The case in Dharambir Singh Vs. State of Punjab turned upon these three propositions. There, the deceased had died as a result of poisoning by potassium cyanide, which poison was also found in the autopsy. The High Court had disbelieved the evidence which sought to establish that the accused had obtained potassium cyanide, but held, nevertheless that the circumstantial evidence was sufficient to convict the accused in that case. This Court, did not, however, accept the circumstantial evidence as 13 complete. It is to be observed that the three propositions were laid down not as the invariable criteria of proof by direct evidence in a case of murder by poisoning, because evidently if after poisoning the victim, the accused destroyed all traces of the body, the first proposition would be incapable of being proved except by circumstantial evidence. Similarly, if the accused gave a victim something to eat and the victim died immediately on the ingestion of that food with symptoms of poisoning and poison, in fact, was found in the viscera, the requirement of proving that the accused was possessed of the poison would follow from the circumstances that the accused gave the victim something to eat and need not be separately proved."
The learned Judge continued:
"The cases of this Court which were decided proceeded upon their own facts, and though the three propositions must be kept in mind always, the sufficiency of the evidence, direct or circumstantial, to establish murder by poisoning will depend on the facts of each case. If the evidence in a particular case does not justify the inference that death is the result of poisoning because of the failure of the prosecution to prove the fact satisfactorily, either directly or by circumstantial evidence, then the benefit of the doubt will have to be given to the accused person. But if circumstantial evidence, in the absence of direct proof of the three elements, is so decisive that the Court can unhesitatingly hold that the death was a result of administration of poison (though not detected) and that the poison must have been administered by the accused person, then the conviction can be rested on it."14
19. Reverting to the facts of the present case, in light of the principles laid down in the matters of Anant Chintaman Lagu, Sharad Birdhichand Sarda and Bhupinder Singh (supra), it is apparent that in the instant case, the trial Court has expressed a possibility that the death of deceased Kavita Patel might have occurred on account of poisoning but it did not record a specific finding that the death of the deceased occurred on account of poisoning. Secondly, there is no evidence at all adduced by the prosecution to establish that the appellant had any poison in his possession as the appellant was also lying near the deceased in an unconscious condition in the courtyard of Basant Patel, who has not been examined. Thirdly, neither there is any evidence that the appellant has administered poison to the deceased nor any other circumstance established by the prosecution on the basis of which it could be held that the accused was having any opportunity to administer poison to the deceased. There is also not an iota of evidence on record to hold that it is the appellant who took deceased Kavita Patel from her house and moreover, no one has seen them together going out from the house of the deceased and as such, the prosecution has not been able to prove that the death of the deceased took place on account of administration of poison by the appellant, which he had kept in his possession, and he had an opportunity to administer the same to the deceased.
20. In the matter of Sharad Birdhichand Sarda (supra), it has been held that the Court has to look into the clear motive of the 15 accused to administer poison to the deceased. The trial Court in para 23 of its judgment has expressed a possibility that since the appellant and the deceased were having a love affair and the appellant wanted to marry the deceased and since her marriage was fixed with someone else, which was to be held on 22.4.2009, therefore, the appellant might have administered poison and thereafter, strangulated her, which goes to show that the same is just an apprehension expressed and suspicion raised by the trial Court. Even all the relatives of the deceased have expressed an apprehension in this regard, but there is no evidence on record to hold so except for the fact that the dead body of the deceased and unconscious body of the appellant were found in one place i.e. in the courtyard of Basant Patel (not examined). It is settled law that the suspicion howsoever strong cannot take the place of proof, therefore, the trial Court has erred in holding that there was a strong motive for committing the offence by the appellant by administering poison i.e. insecticide to the deceased and thereafter, strangulating her. The motive is a weak type of evidence even if it is held to be established. The motive may be an important circumstance in a case based on circumstantial evidence but cannot take the place of conclusive proof that the person concerned was the author of the crime (See: Sampath Kumar Vs. Inspector of Police, Krishnagiri5, ).
21. Further, in the present case, the trial Court has shifted the
5.AIR 2012 SC 1249 16 burden on the accused to explain as to under what circumstances, Kavita Patel died and ligature marks were found on her neck.
22. In this respect, Section 106 of the Indian Evidence Act 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."
23. 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 Indian 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.
24. In the matter of Shambhu Nath Mehra v. The State of Ajmer 6, 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 6 AIR 1956 SC 404 17 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. 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.
25. 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 Bihar7 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 7 (2021) 10 SCC 725 18 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."
26. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab8, while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by 8 AIR 1956 SC 460 19 an accused, which may absolve him from criminal liability, certain lies upon him.
27. 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 Bihar9 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.
28. Reverting to the facts of the present case, it is quite vivid that the general or primary burden was on the prosecution to prove its case beyond reasonable doubt by adducing evidence. It is only after adducing the 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. In the instant case, the prosecution has failed to discharge its primary burden of proving its case that the accused was in possession of poison and that he had an opportunity to administer the poison to the deceased, as a result of which, the deceased died. In that view of the matter, the burden placed by the trial Court upon the accused/appellant to explain the circumstance is totally incorrect.
29. As per the provisions contained under Section 313 of Cr.P.C, the Court is required to put the incriminating circumstances to the accused and it is only then, he is required to explain any 9 AIR 1974 SC 778 20 circumstances appearing in the evidence against him.
30. In view of the aforesaid discussion and legal analysis, we are unable to hold that the trial Court is justified in convicting and sentencing the appellant for offence under Section 302 of the IPC. Conviction and sentence imposed on the appellant under Section 302 of the IPC are set-aside and he is acquitted of the said charge. The appellant is on bail. He need not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the Cr.PC. The appellant shall appear before the Higher Court as and when directed.
31. The criminal appeal is accordingly allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) ( Deepak Kumar Tiwari)
Judge Judge
Shyna