Chattisgarh High Court
Kunti Bai Tarak vs State Of Chhattisgarh on 24 July, 2024
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Neutral Citation
2024:CGHC:26924-DB
1
Criminal Appeal Nos. 1527 of 2018 & 1850 of 2018
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1527 of 2018
(Arising out of judgment dated 14.09.2018 passed in S. T.
No.13/18 by learned Additional Sessions Judge, Raipur (CG)
Takesh Sahu S/o Shri Prakash Sahu Aged About 27 Years
R/o Village Chandi Police Station Abhanpur, Raipur
District (Revenur And Civil ) Raipur Chhattisgarh
---- Appellant
Versus
State Of Chhattisgarh Through District Magistrate District
Raipur Chhattisgah.
---- Respondent
For Appellants : Mr. Yogesh Pandey, Advocate
For Respondent : Mr. Soumya Roy, Panel Lawyer
Criminal Appeal No. 1850 of 2018
Kunti Bai Tarak D/o Late Mukesh Tarak Aged About 25
Years R/o Chandi, Police Station Abhanpur, District
Raipur Chhattisgarh
---- Appellant
Versus
State Of Chhattisgarh Through The Station House Officer,
Police Station Abhanpur, District Raipur Chhattisgarh
---- Respondent
For Appellants : Ms. Nirupama Bajpai, Advocate
For Respondent : Mr. Soumya Roy, Panel Lawyer
Neutral Citation
2024:CGHC:26924-DB
2
Criminal Appeal Nos. 1527 of 2018 & 1850 of 2018
(Division Bench)
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment On Board
(24.07.2024)
Sanjay K. Agrawal, J.
1. Since both the criminal appeals, under Section 374(2) of CrPC, have arisen out of the same impugned judgment and the question of law and facts also being similar in these appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.
2. In both the criminal appeals, the judgment dated 14/09/2018 passed by Additional Sessions Judge, Raipur, Chhattisgarh, in S.T. No.13/2018 has been challenged by which both the appellants have been convicted for the offence punishable under Section 302/34 of IPC and sentenced to undergo rigorous imprisonment for life and fine of Rs.100/- each, in default of payment of fine, to undergo one month additional Simple imprisonment.
3. The case of prosecution, in short, is that in the intervening night of 01/02.09.2017, in Ward No.7, village Chandi, P.S. Abhanpur, District Raipur, the appellants herein, in furtherance of common intention, are alleged to have strangulated Mukesh Tarak (now deceased) to death by towel, thereby committed the offence of murder punishable under Section 302/34 of IPC. Further case of the prosecution is that in the morning, the brother of the Neutral Citation 2024:CGHC:26924-DB 3 Criminal Appeal Nos. 1527 of 2018 & 1850 of 2018 deceased Bharat Lal (PW-4), on being received information, went to the house of deceased Mukesh Kumar and found him dead in suspicious condition. Thereafter, the matter was reported to the Police by Bharat Lal (PW-4) at PS Abhanpur, based on which, Dehati Merg Intimation was recorded vide Ex.P-6. After enquiry, the Police registered Dehati Nalsi vide Ex.P-7 and FIR was registered vide Ex.P-
30. The dead body of deceased was subjected to postmortem, which was conducted by Dr. Smt. S. D. Kanwar (PW-11), who has proved the post-mortem report Ex. P-22, in which, cause of death has been opined to be strangulation and it was homicidal in nature. The nails of the appellants were sent for chemical examination to FSL and as per FSL report Ex.P-38, no blood was found on the said articles.
4. After completion of investigation, the appellants were charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused abjured their guilt and entered into defence stating that they have not committed any offence and they have falsely been implicated in crime in question.
5. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 15 witnesses and exhibited 43 documents. The statement of the appellants / accused was recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false Neutral Citation 2024:CGHC:26924-DB 4 Criminal Appeal Nos. 1527 of 2018 & 1850 of 2018 implication. However, appellants-accused in support of their defence have not examined any witness but have exhibited two documents.
6. Learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants for the offence as mentioned in paragraph No.2 of this judgment, against which both the appeals have been preferred by the appellants questioning the impugned judgment of conviction and order of sentence.
7. Mr. Yogesh Pandey, learned counsel appearing for appellant Takesh Sahu, would submit that there is absolutely no evidence that appellant Takesh Sahu was present in the house of the deceased and appellant Kunti Bai at the time of offence. He submits that the appellant has been convicted without there being any evidence against him and therefore he is entitled for acquittal on the ground of benefit of doubt.
8. Smt. Nirupama Bajpai, learned counsel appearing for appellant Kunti Bai Tarak would submit that there is no direct evidence against appellant Kunti Bai and she has been convicted only on the basis of weak circumstantial evidences. She would submit that the prosecution has not been able bring home the offence against Kunti Bai beyond reasonable doubt, therefore, she is entitled for acquittal on the basis of benefit of doubt.
9. On the other hand, Mr. Soumya Roy, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home Neutral Citation 2024:CGHC:26924-DB 5 Criminal Appeal Nos. 1527 of 2018 & 1850 of 2018 the offence beyond reasonable doubt and the conviction of the appellants for the offence under Section 302/34 of I.P.C. is well merited, as such, the appeal deserves to be dismissed.
10. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.
11. 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 1 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.
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
1. (1984) 4 SCC 116 Neutral Citation 2024:CGHC:26924-DB 6 Criminal Appeal Nos. 1527 of 2018 & 1850 of 2018 proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra 2 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."
12. 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 first and foremost circumstance for
2. (1973) 2 SCC 793 Neutral Citation 2024:CGHC:26924-DB 7 Criminal Appeal Nos. 1527 of 2018 & 1850 of 2018 consideration is whether the death of deceased Mukesh Tarak was homicidal in nature?
13. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex. P-22 proved by Dr. Smt. S. D. Kanwar (PW-11) that the death of the deceased was homicidal in nature, which is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.
14. Now, the next question would be whether the accused-
appellants herein are the author of the crime in question, for which learned trial Court after holding the death of the deceased to be homicidal in nature invoked Section 106 of the IE Act and thereby, proceeded to convict them for offence under Section 302 of IPC. Therefore, the primary question cropped up for consideration before us would be whether the learned trial Court has rightly invoked Section 106 of the IE Act, for which, it would be appropriate to notice the principle governing the applicability of Section 106 of IE Act.
15. In the matter of Anees v. The State Govt. of NCT3, their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the Evidence Act, have held in paragraphs 47 to 55 as under:-
"47. But Section 106 of the Evidence Act has no application to cases where the fact in question, having regard to its nature, is such as to be capable of being known not only to
3. 2024 INSC 368 [Criminal Appeal No.437 of 2015, decided on 30.05.2024]CC Neutral Citation 2024:CGHC:26924-DB 8 Criminal Appeal Nos. 1527 of 2018 & 1850 of 2018 the accused but also to others, if they happened to be present when it took place. The intention underlying the act or conduct of any individual is seldom a matter which can be conclusively established; it is indeed only known to the person in whose mind the intention is conceived. Therefore, if the prosecution has established that the character and circumstance of an act suggest that it was done with a particular intention, then under illustration (a) to this section, it may be assumed that he had that intention, unless he proves the contrary.
48. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence, which if believed by the court, would convince them of the accused's guilt beyond a reasonable doubt, the accused, if in a position, should go forward with counter-vailing evidence, if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence Neutral Citation 2024:CGHC:26924-DB 9 Criminal Appeal Nos. 1527 of 2018 & 1850 of 2018 presented by the prosecution or as confirming presumptions which might arise therefrom. Although not legally required to produce evidence on his own behalf, the accused may, therefore, as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution [See: Balvir Singh v. State of Uttarakhand, 2023 SCC OnLine 1261] ii. What is "prima facie case"
(foundational facts) in the context of Section 106 of the Evidence Act?
49. The Latin expression prima facie means "at first sight", "at first view", or "based on first impression". According to Webster's Third International Dictionary (1961 Edn.), "prima facie case" means a case established by "prima facie evidence" which in turn means "evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted". In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the case or charges against the defendant. If they cannot present prima facie evidence, the initial claim may be dismissed without any need for a response by other parties.
50. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding guilt of the accused.
51. The presumption of fact is an inference as to the existence of one fact from the existence Neutral Citation 2024:CGHC:26924-DB 10 Criminal Appeal Nos. 1527 of 2018 & 1850 of 2018 of some other facts, unless the truth of such inference is disproved.
52. To explain what constitutes a prima facie case to make Section 106 of the Evidence Act applicable, we should refer to the decision of this Court in State of W.B. v. Mir Mohammad and ors. (2000) 8 SCC 382, wherein this Court has observed in paras 36 and 37 respectively as under:
"36. In this context we may profitably utilize the legal principle embodied in Section 106 of the Evidence Act which reads as follows: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section 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."
(Emphasis supplied)
53. We should also look into the decision of this Court in the case of Ram Gulam Chaudhary & Ors. v. State of Bihar, (2001) 8 SCC 311, wherein this Court made the following observations in paragraph 24 as under:
"24. Even otherwise, in our view, this is a case where Section 106 of the Evidence Neutral Citation 2024:CGHC:26924-DB 11 Criminal Appeal Nos. 1527 of 2018 & 1850 of 2018 Act would apply. Krishnanand Chaudhary was brutally assaulted and then a chhura-blow was given on the chest. Thus chhura-blow was given after Bijoy Chaudhary had said "he is still alive and should be killed". The appellants then carried away the body.
What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the appellants.
The appellants have given no explanation as to what they did after they took away the body. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the court, there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. We, therefore, see no substance in this submission of Mr. Mishra."
Neutral Citation 2024:CGHC:26924-DB 12 Criminal Appeal Nos. 1527 of 2018 & 1850 of 2018 (Emphasis supplied)
54. Cases are frequently coming before the courts where the husband, due to strained marital relations and doubt as regards the character, has gone to the extent of killing his wife. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, like in the case at hand, even if he is a witness of the crime, would come forward to depose against another family member.
55. If an offence takes place inside the four walls of a house and in such circumstances where the accused has all the opportunity to plan and commit the offence at a time and in the circumstances of his choice, it will be extremely difficult for the prosecution to lead direct evidence to establish the guilt of the accused. It is to resolve such a situation that Section 106 of the Evidence Act exists in the statute book. In the case of Trimukh Maroti Kirkan (supra), this Court observed that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. The Court proceeded to observe that a Judge also presides to see that a guilty man does not escape. Both are public duties. 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."
Neutral Citation 2024:CGHC:26924-DB 13 Criminal Appeal Nos. 1527 of 2018 & 1850 of 2018
16. Reverting to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the above judgment, it is quite vivid that in the house in question, apart from appellant No.2 Kunti Bai and her husband Mukesh Tarak, other relatives i.e. Kamdev Tarak (PW-6) and Smt. Nirmala Tarak (PW-7) who are the brother and mother of the deceased respectively, were also residing in separate rooms in same premises and all the rooms were attached to each other and accessible to the persons living in the house. As such, it is not the case of prosecution that the deceased and appellant No.2 Kunti Bai were residing alone in the house, rather, other relatives were also residing along with them. There is no evidence on record that at the time of offence, appellant No.2 and the deceased were present together at the place where the dead body of Mukesh was found. Though the death of the deceased has been held to be homicidal in nature, but the prosecution has clearly failed to establish that appellant No.2 and the deceased were the only inmates who were present in the house at the time of commission of the offence and, therefore, in light of the decision of the Supreme Court in the matter of Anees (supra), no prima facie case is made out for invoking Section 106 of IE Act and the learned trial Court is absolutely unjustified in invoking Section 106 of IE Act under the facts and circumstances of the present case.
17. As per the statement of the mother of the deceased Smt. Nirmala Tarak (PW-7), on the date of offence at about 9:30 p.m. appellant No.2 was talking with appellant No.1. However, it could not be established beyond reasonable Neutral Citation 2024:CGHC:26924-DB 14 Criminal Appeal Nos. 1527 of 2018 & 1850 of 2018 doubt that appellant No.1 was also present in the house in question on the date and time of offence. Except the fact that Mukesh Tarak was found dead in the house in question, there is no direct evidence to the incident showing that it is the appellants who have committed murder of Mukesh Tarak, more particularly when no specific question regarding how and what circumstances Mukesh died in the house has been put to appellant No.2 in her statement recorded under Section 313 of CrPC.
18. So far as the motive of the offence is concerned, appellant No.2 is said to have relationship with appellant No.1. Though it has been established, the same would not itself be sufficient to convict the two appellants for offence under Section 302 of IPC.
19. In that view of the matter, we find that as per the principle of 'Panchsheel' given by the Honorable Supreme Court in the case of Sharad Birhichand Sarda (Supra), the chain of evidences are not so complete in which the appellants can be held guilty for the incident. Consequently, we are unable to uphold the conviction of the appellants for offence under Section 302/34 of the IPC and the appellants are entitled for acquittal on the basis of the principle of the benefit of doubt.
20. Accordingly, the impugned judgment dated 14.09.2018 passed by the Trial Court convicting and sentencing the appellants for the offence under Section 302/34 of IPC is hereby set aside/quashed and both the appellants are acquitted from the said offence on the basis of benefit of doubt. Appellant No.2 Kunti Bai Tarak is reported to be in jail since 03.09.2017. She be released from jail forthwith, Neutral Citation 2024:CGHC:26924-DB 15 Criminal Appeal Nos. 1527 of 2018 & 1850 of 2018 if her detention is not required in connection with any other offence. Appellant No.1 Takesh Sahu 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 CrPC.
21. This criminal appeal, accordingly, stands allowed.
22. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and to the Superintendent of Jail where they are lodged and suffering jail sentence, for information and necessary action, if any.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)
Judge Judge
Khatai