Sanjay K. Agrawal, J
1. This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein against the judgment and order dated 28.4.2017 passed by the Sessions Judge, Durg in Sessions Case No.91/2015, by which the appellant has been convicted for the offences punishable under Sections 302 and 201 of IPC and sentenced to undergo Imprisonment for Life under Section 302 of IPC and R.I. for 3 years under Section 201 of IPC. Further, for each of the offences, he has also been sentenced to pay fine of Rs.100/-and in the event of non-payment of fine amount, to undergo additional R.I. for one month. Both the substantive sentences have been directed to run concurrently.
2. Case of the prosecution, in short, is that on 27.11.2014 at about 11:00 a.m., the appellant is said to have strangulated his wife, Sheetal Sarthi, to death and further in order to conceal the evidence, burnt her dead-body with an intention to screen himself from legal punishment. He immediately informed the matter to his brother-in-law, PW-10 Satish Sarthi, who came to the spot. The appellant himself lodged Merg Intimation (Exhibit P-15) at Police Station Amleshwar and thereafter Inquest Report was prepared and the dead-body of Sheetal Sarthi was subjected to post-mortem conducted by Dr. Arun Kumar Katare (PW-6) vide Exhibit P-2 in which the cause of death was opined to be due to asphyxia as a result of throttling, the injuries were found to be ante-mortem in nature and the nature of death was homicidal. Thereafter, F.I.R. was registered vide Exhibit P-5. Spot Map was prepared vide Exhibit P-6. Memorandum statement of the appellant was recorded vide Exhibit P-19 pursuant to which, one plastic box and one matchbox with burned matchstick were seized vide Exhibit P-20. Burned clothes of the deceased were also seized and the seized articles were sent for chemical examination to F.S.L. and in the F.S.L. report received vide Exhibit P-13, kerosene particles were found on the burned clothes of the deceased.
3. After completion of the investigation, the appellant was charge-sheeted for the offences punishable under Sections 302 and 201 of IPC before the concerned jurisdictional Criminal Court from where the case was committed to the Sessions Court, Durg for trial and its disposal in accordance with law, in which the appellant abjured his guilt, took a plea of false implication and entreated for trial.
4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 14 witnesses as PW-1 to P-14 and exhibited 21 documents from Exhibits P-1 to P-21. In defence, Mahendra Sarthi and Suresh Sarthi have been examined as DW-1 and DW-2 respectively and 9 documents have been cited as Exhibits D-1 to D-9. Statement of the accused/appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.
5. After conclusion of the trial, the Trial Court, by impugned judgment dated 28.4.2017, on appreciation of the oral and documentary evidence available on record, has convicted the appellant for the offences punishable under Sections 302 and 201 of IPC and sentenced him as mentioned in the opening paragraph of this judgment, against which the present appeal has been filed by the appellant calling in question the legality, validity and correctness of the impugned judgment.
6. Ms. Priyanka Rai, learned counsel appearing for the appellant, would submit that the Trial Court has convicted the appellant invoking Section 106 of the Evidence Act but the same has wrongly been invoked, as the appellant and his brother-in-law, PW-10 Satish Sarthi, both had left for their respective place of work and immediately thereafter the incident took place at 11:00 a.m. and there is no evidence on record that the appellant had returned back and strangulated his wife to death. In that view of the matter, the finding recorded by the Trial Court for convicting the appellant by virtue of Section 106 of the Evidence Act is absolutely unjustified and the impugned judgment is liable to be set-aside, acquitting the appellant on the basis of benefit of doubt.
7. Per contra, Mr. Ravi Maheshwari, learned State Counsel, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the Trial Court is absolutely justified in applying Section 106 of the Evidence Act in convicting the appellant for said offences, therefore, the appellant is not entitled to be acquitted on the basis of benefit of doubt and the appeal deserves to be dismissed.
8. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection.
9. The first question as to whether the death of deceased Sheetal Sarthi was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of Dr. Arun Kumar Katare (PW-6) who has proved the post-mortem report (Exhibit P-2) in which the cause of death has been opined to be due to asphyxia as a result of throttling, the injuries were found to be ante-mortem in nature and the nature of death has been stated to be homicidal, which, in our considered opinion, is 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 of the Trial Court.
10. Furthermore, the Trial Court has convicted the appellant on the basis of circumstantial evidence. The death of deceased Sheetal Sarthi being homicidal in nature has been duly proved. So far as the motive of the offence is concerned, in para-27 of the impugned judgment, the Trial Court has recorded the finding that the appellant and the deceased did not share good relationship and on the date of offence, though the appellant and his brother-in-law, PW-10 Satish Sarthi, had left for their respective place of work but thereafter the appellant came back and strangulated his wife to death and which has not been explained by the appellant in his statement recorded under Section 313 of CrPC, therefore, he is guilty of the offence in question.
11. Even if the motive of the offence is said to have been established as the appellant used to suspect that one of his children is not born out of their wedlock but the appellant and the deceased both were staying together. On the date of offence at 10:30 a.m., the appellant and his brother-in-law, PW-10 Satish Sarthi, had left for their work separately and the Trial Court has recorded the finding that immediately after some time, the appellant came back and strangulated his wife and burned her dead-body. However, there is no evidence on record at all to hold that immediately after leaving the premises, the appellant came back and strangulated his wife to death and burned her dead-body. Even in his statement recorded under Section 313 of CrPC, no such question has been put to the appellant that he was seen in company of his wife after he and PW-10 Satish Sarthi left for their work. In order to invoke Section 106 of the Evidence Act, there must be evidence on record that on the date and time of offence, the appellant and the deceased both were seen together but there is no evidence at all adduced by the prosecution to establish that fact. Even in his statement recorded under Section 313 of CrPC, no such question has been put to the appellant that he came back after some time and strangulated his wife to death, which is sine qua non for invoking Section 106 of the Evidence Act.
12. Recently, in the matter of Balvir Singh v. State of Uttarakhand 2023 SCC OnLine SC 1261, their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the Evidence Act, have held that Section 106 has to be applied in criminal cases with care and caution and held in paragraphs 41 to 48 as under:-
“41. Thus, from the aforesaid decisions of this Court, it is evident that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106 of the Evidence Act.
42. Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden of the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused.
43. Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory. If in such a situation, the accused gives an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams:
“All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence.”
44. To recapitulate the foregoing : What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is therefore for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions. If the accused had a different intention that is a fact especially within his knowledge and which he must prove (see Professor Glanville Williams—Proof of Guilt, Ch. 7, page 127 and following) and the interesting discussion—para 527 negative averments and para 528—“require affirmative counter-evidence” at page 438 and foil, of Kenny's outlines of Criminal Law, 17th Edn. 1958.
45. But Section 106 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 by the accused but also by others if they happened to be present when it took place. From the illustrations appended to the section, it is clear that an intention not apparent from the character and circumstances of the act must be established as especially within the knowledge of the person whose act is in question and the fact that a person found travelling without a ticket was possessed of a ticket at a stage prior in point of time to his being found without one, must be especially within the knowledge of the traveler himself:see Section 106 of the In-dian Evidence Act, illustrations (a) and (b).
46. 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 is in a position where he 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 presented by the prosecution or as confirming presumptions which might have been rebutted. 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 (Wharton's Criminal Evidence, 12th Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Leland v. State reported in 343 U.S. 790=96 L.Ed. 1302, Raffel v. U.S. reported in 271 U.S. 294=70 L.Ed. 1054.
WHAT IS “PRIMA FACIE CASE” IN THE CONTEXT OF SECTION 106 OF THE EVIDENCE ACT?
47. 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 “evi-Ideuce 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 charges against the defendant. If they cannot present prima facie evidence, or if an opposing party introduces contradictory evidence, the initial claim may be dismissed without any need for a response by other parties.
48. 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 death.”
13. In that view of the matter, only on the basis of motive, the appellant could not have been convicted for the offence punishable under Section 302 of IPC and the Trial Court is absolutely unjustified invoking Section 106 of the Evidence Act to convict the appellant for the offences in question. The appellant therefore is entitled to be acquitted from the offences punishable under Sections 302 and 201 of IPC on the basis of benefit of doubt.
14. Accordingly, the impugned judgment and order dated 28.4.2017 is set aside/quashed. The appellant is acquitted of the charges under Sections 302 and 201 of IPC. He is stated to be in jail since 5.5.2015. He be released from jail forthwith, if his detention is not required in connection with any other offence.
15. This criminal appeal stands allowed accordingly.
16. 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, if any, at the earliest.
