Sanjay K. Agrawal, J
1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 23.09.2016 passed
by the Sessions Judge, Ambikapur, District Sarguja, in Sessions Trial No.117/2015, by which, the appellant herein has been convicted for the offence
under Sections 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.500/-, in default of payment of fine amount, 3
months’ additional rigorous imprisonment.
2. Case of the prosecution, in short, is that in the intervening night of 14-15/09/2015 at about 10:00 P.M. to 01:00 A.M. at village Maheshpur,
Schoolpara, Police Station Sitapur, District Sarguja, the appellant herein assaulted his wife Smt. Balmati (now deceased) by means of Tangi & Lathi,
by which, she suffered grievous injuries and died. In the morning, the appellant himself informed the matter to his brother Ramjit (PW-7) and
thereafter, Yashoda Singh (PW-8), Sarpanch of the Village, who reported the matter to the police vide merg report Ex.P-5 that the appellant has
murdered his wife, pursuant to which, Dehati Nalashi was recorded vide Ex.P-6, FIR was registered vide Ex.P-6A, inquest was conducted vide Ex.P-
9 and dead body of deceased Balmati was subjected to post-mortem, which was conducted by Dr. S.N.Paikara (PW-1), who proved the post-mortem
report Ex.P-1, in which, cause of death was stated to be hemorrhagic shock due to injury on occipital bone of head and death was homicidal in nature.
Pursuant to memorandum statement of the appellant Ex.P-10, Tangi & Lathi along-with Shirt were seized vide Ex.P-11, which were sent for chemical
examination to FSL and as per the FSL report (Ex.P-15B), blood was found on the seized articles. After due investigation, the appellant was charge-
sheeted for the aforesaid offence to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and
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.
3. In order to bring home the offence, prosecution examined as many as 11 witnesses and exhibited 18 documents and the appellant-accused in
support of his defence has examined only one witness DW-1, but has not exhibited any document.
4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of
I.P.C. and sentenced him as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred.
5. Mrs. Usha Chandrakar, learned counsel for the appellant would submit that the trial Court has principally invoked Section 106 of the Evidence Act
to hold that the appellant is guilty of offence on the ground that he has failed to explain in the statement under Section 313 Cr.P.C. as to how and in
what circumstances his wife has died in his house, but there is no evidence at all that on the date and time of offence, appellant was present in his
house as according to prosecution witnesses, he was not in the village and in that view of the matter, the appellant is entitled for acquittal on the basis
of benefit of doubt and the appeal deserves to be allowed.
6. Ms. Nand Kumari Kashyap, 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 trial Court has rightly convicted the appellant for the aforesaid offence. He further submits that the
incriminating circumstances culled out by the trial Court in para 20 of its judgment have been found proved and, as such, the appeal deserves to be
dismissed.
7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost
circumspection.
8. The first question for consideration as to whether the death of deceased Balmati was homicidal in nature, has been answered by the trial Court in
affirmative relying upon the post-mortem report Ex.P-1 proved by Dr. S.N.Paikara (PW-1), which in our considered opinion is a correct finding of
fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.
9. The conviction of the appellant is based on circumstantial evidence and 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 (1984) 4 SCC 116 which must be fulfilled for convicting an accused on the basis of circumstantial evidence. Paragraph 153 of
the report 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 proved†as was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra (1973) 2 SCC 793 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.â€
10. The trial Court has culled out the following four incriminating circumstances in paragraph 20 of its judgment, which states as under :
11. Now, we will consider the correctness of the aforesaid findings of the trial Court one by one to find out whether the trial Court is justified in
convicting the appellant for the offence under Section 302 of I.P.C.
12. The first incriminating circumstance culled out by the trial Court is that on 15.09.2015 at morning 5:30 A.M., the appellant has firstly informed to
his brother Ramjit (PW-7) about the death of his wife. It is a natural act on the part of the appellant that he informed about the death of his wife to his
brother and it cannot be taken as an incriminating circumstance.
13. The next incriminating circumstance found proved by the trial Court is that pursuant to memorandum statement of the appellant, Tangi and Shirt
have been seized on which blood has been found. It is not the case of the prosecution that human blood has been found on the seized articles as per
the FSL report (Ex.P-15-B). In the matter of Balwan Singh v. State of Chhattisgarh & Anr. (2019) 7 SCC 781 their Lordships of the Supreme Court
have clearly held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, then it may be sufficient if the
prosecution shows that the blood found on the articles is of human origin, even though the blood group is not proved and held as under :-
“24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood
was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from
stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood
group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such
recovery does not help the case of the prosecution.â€
In view of the decision of Supreme Court in the matter of Balwan Singh (supra), the recovery of Tangi & Shirt is of no use to the prosecution, as no
human blood was found on the Tangi & Shirt.
14. The last incriminating circumstance found proved by the trial Court is that in the house in which dead body of deceased Balmati was found, the
appellant and deceased both were residing together and none else were residing with them and therefore, Section 106 of the Evidence Act has been
applied and the appellant has been convicted.
15. Section 106 of the Indian Evidence Act, 1872, states as under: -
“106. Burden of proving fact especially within knowledge.â€"When any fact is especially within the knowledge of any person, the burden of
proving that fact is upon him.â€
16. 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.
17. In the matter of Shambhu Nath Mehra v. The State of Ajmer AIR 1956 SC 404, 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 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).â€
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.
18. 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 Bihar (2021) 10 SCC 725 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.â€
19. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab AIR 1956 SC 460, 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 an accused, which may absolve him from criminal liability, certain lies upon him.
20. 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 AIR 1974 SC 778 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.
21. 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 ?
22. Ramjit (PW-7) and Managar Ram (PW-10) both have only stated in their statement that the house in which deceased Balmati died, appellant and
deceased both used to reside. However, no evidence has been brought on record to say that on the date and time of offence, appellant and deceased
both were resided together and thereafter, in the morning, the dead body was noticed by the appellant herein and informed to his brother Ramjit (PW-
7). The prosecution is obliged to bring the legal evidence on record to say that on the date and time of offence, appellant and deceased both were
resided in the house and immediately, thereafter, in the morning, the dead body was found. To invoke Section 106 of the Evidence Act, the evidence
of clinching nature that appellant and deceased both were resided in the suit house together on the date and time of offence is absolutely required,
however, in the present case, the same is missing. Therefore, invocation of Section 106 of the Evidence Act in the present case would not be proper
that too in absence of other corroborative piece of evidence.
23. In that view of the matter, the prosecution has failed to prove that appellant and deceased both were resided together in the suit house on the date
and time of offence and in absence of that, the prosecution has failed to discharge its primary burden to invoke Section 106 of the Evidence Act.
24. In view of the above, we are of the considered opinion that the appellant is entitled for acquittal on the ground of benefit of doubt. The conviction
of the appellant for the offence under Section 302 of I.P.C. is hereby set aside. The appellant is acquitted of the charge under Section 302 of I.P.C.
He shall be forthwith set at liberty, unless he is required in connection with any other offence.
25. In the result, the appeal is allowed.
26. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and
action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the
jail sentence.
