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 18.05.2016 passed
by learned Sessions Judge, Raipur, in Sessions Trial No.205/2015, by which, the appellant herein has been convicted for offence under Sections 302 of
Indian Penal Code and sentenced to undergo life imprisonment.
2. Case of the prosecution, in short, is that in the intervening night of 08/09-06-2015 at about 1:00 A.M. at Saddu, BSUP Colony, Block No.10, Room
No.8, the appellant herein assaulted his second wife namely Savita Narang (now deceased) by axe, by which, she suffered grievous injuries and died;
thereby the offence has been committed. Vishwanath Narang (PW-1) reported the matter to the police that the appellant has murdered his second
wife at Saddu and came to his first wife at village Bhatgaon and making attempt to commit suicide. After completion of formalities, FIR was
registered vide Ex.P-15 & Ex.P-16, merg intimation was recorded vide Ex.P-17 & Ex.P-18, inquest was conducted vide Ex.P-6 and dead body of
deceased Savita Narang was subjected to post-mortem, which was conducted by Dr. S.K.Bagh (PW-14), who proved the post-mortem report Ex.P-
13, according to which, cause of death was stated to be hemorrhage & shock due to neck injuries and death was homicidal in nature. Pursuant to
memorandum statement of the appellant Ex.P-4, axe was recovered from the spot vide Ex.P-9, which was sent for chemical examination to FSL and
as per the FSL report (Ex.P-34), human blood was found on the seized axe. 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 16 witnesses and exhibited 34 documents and the appellant-accused in
support of his defence has not examined any witness but has exhibited the document Ex.D-1.
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 to undergo life imprisonment, against which the present appeal has been preferred.
5. Mr. B.P.Rao, learned counsel for the appellant would submit that the prosecution not been able to bring home the offence beyond reasonable doubt
and the incriminating circumstances are not established beyond doubt and, as such, the appellant is entitled for acquittal on the basis of benefit of doubt
and the appeal deserves to be allowed.
6. Mr. H.A.P.S. Bhatia, learned State counsel would submit that the prosecution has been able to bring home the offence beyond reasonable doubt
and the trial Court has rightly convicted the appellant for offence under Section 302 of I.P.C. 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 Savita Narang was homicidal in nature, has been answered by the trial
Court in affirmative relying upon the post-mortem report Ex.P-13, proved by Dr. S.K.Bagh (PW-14), according to which, cause of death was stated
to be hemorrhage & shock due to neck injuries and death was homicidal in nature, 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 case of the prosecution is not based on direct evidence, it is 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 (1984) 4 SCC 116, which must be fulfilled for convicting an accused on the basis of circumstantial
evidence in paragraph 153 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 first circumstance that has been found proved by the trial Court in paragraph 13 of its judgment is that pursuant to the First Information
Report lodged by the appellant vide Ex.P-15 on 08.06.2015, the dead body was recovered vide Ex.P-1 and that is one of the incriminating
circumstance, relying upon the decision of the Supreme Court in the matter of Aghnoo Nagesia v. State of Bihar AIR 1966 SC 119. However, the
Supreme Court in Aghnoo Nagesia (supra) has clearly held that discovery of the dead body and tangi in consequence of the information would not
sufficient to convict the appellant of the offence under Section 302 of I.P.C. and held as under :
“21. Section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Now, the Sub Inspector
stated that he arrested the appellant after he gave the first information report leading to the discovery. Prima facie, therefore, the appellant was not in
the custody of a police officer when he gave the report, unless it can be said that he was the in constructive custody. On the question whether a
person directly giving to a police officer information which may be used as evidence against him may be deemed to have submitted himself to the
custody of the police officer within the meaning of S. 27, there is conflict of opinion. See the observations of Shah, J. and Subba Rao, J. in State of
U.P. v. Deoman Upadhyaya [1961] 1 S.C.R. 14 : (AIR 1960 SC 1125). For the purposes of the case, we shall assume that the appellant was
constructively in police custody and therefore the information contained in the first information report leading to the discovery of the dead bodies and
the tangi is admissible in evidence. The entire evidence against the appellant then consists of the fact that the appellant gave information as to the
place where the dead bodies were lying and as to the place where he concealed the tangi, the discovery of the dead bodies and the tangi in
consequence of the information, the discovery of a blood-stained chadar from the appellant's house and the fact that he had gone to Dungi Jharan Hills
on the morning of August 11, 1963. This evidence is not sufficient to convict the appellant of the offences under S. 302 of the Indian Penal Code.â€
As such, this incriminating circumstance would not implicate the appellant in the offence in question.
11. Now, the next incriminating circumstance found proved by the trial Court is that the appellant and deceased both were living together in the suit
house on the date of offence and the dead body was found in the house of appellant, which he has not explained in his statement, therefore, he is guilty
of offence and has been convicted with the aid of Section 106 of the Indian Evidence Act.
12. Now, the question would be whether Section 106 of the Evidence Act has rightly been made applicable by the trial Court while convicting the
appellant for offence under Section 302 of the IPC ?
13. At this stage, it would be appropriate to quote 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€
14. 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.
15. 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€
16. 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.
17. 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: -
“19. In this case, as mentioned above, neither the prosecution witnesses have deposed to that effect nor any other material has been placed on
record to show that the relationship between the appellant and the deceased was strained in any manner. Moreover, the appellant was not the only
person residing in the house where the incident took place and it is brought on record that the parents of the appellant were also present on the date of
the incident in the house. The fact that other members of the family of the appellant were present shows that there could be another hypothesis which
cannot be altogether excluded. Therefore, it can be said that the facts established do not rule out the existence of any other hypothesis. The facts
established cannot be said to be consistent only with one hypothesis of the guilt of the appellant.
*** *** *** ***
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€
18. 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.
19. 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 (1974) 4 SCC 193 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.
20. In the matter of Shivaji Chintappa Patil v. State of Maharashtra (2021) 5 SCC 626 relying upon the Subramaniam v. State of Tamil Nadu (2009)
14 SCC 415 their Lordships have held that when the husband and wife remaining within four walls of a house and death taking place, it would be a
strong circumstance, but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive and observed in
paragraph 20 as under:-
“20. That leads us to the reliance placed by the High Court as well as the trial court on the provisions of Section 106 of the Evidence Act. In
Subramaniam (supra), this Court had occasion to consider the similar case of the husband and wife remaining within the four walls of a house and
death taking place. It will be relevant to refer to the following observations of this Court:-
“23. So far as the circumstance that they had been living together is concerned, indisputably, the entirety of the situation should be taken into
consideration. Ordinarily when the husband and wife remained within the four walls of a house and a death by homicide takes place it will be for the
husband to explain the circumstances in which she might have died. However, we cannot lose sight of the fact that although the same may be
considered to be a strong circumstance but that by alone in the absence of any evidence of violence on the deceased cannot be held to be conclusive.
It may be difficult to arrive at a conclusion that the husband and the husband alone was responsible therefor.â€
21. Similarly, their Lordships in Shivaji Chintappa Patil (supra) have relied upon the decision of Gargi v. State of Haryana (2019) 9 SCC 738 and
observed in paragraphs in 22 & 23 as under:-
“22. It will also be relevant to refer to the following observations of this Court in the case of Gargi (supra):-
“33.1. Insofar as the “last seen theory†is concerned, there is no doubt that the appellant being none other than the wife of the deceased and
staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by
itself, does not mean that a presumption of guilt of the appellant is to be drawn. The trial court and the High Court have proceeded on the assumption
that Section 106 of the Evidence Act directly operates against the appellant. In our view, such an approach has also not been free from error where it
was omitted to be considered that Section 106 of the Evidence Act does not absolve the prosecution of its primary burden. This Court has explained
the principle in Sawal Das (supra) in the following:
“10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its
general or primary burden of proving the prosecution case beyond reasonable doubt. 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.â€â€
23. It could thus be seen, that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying
under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of
discharging its primary burden of proving the prosecution case beyond reasonable doubt. 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
would lie upon the accused.â€
22. Further, relying upon the decision of Sharad Birdhichand Sarda (supra) their Lordships further have concluded that by now it is well settled that
principle of law, that false explanation or non-explanation can only be used as an additional circumstance, when the prosecution has proved the chain
of circumstances leading to no other conclusion than the guilt of the accused. However, it cannot be used as a link to complete the chain of
circumstances.
23. Similarly, 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 can-not 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 modi-fied 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
estab-lish 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 explana-tion is
to relieve the prosecution of its legiti-mate 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 circum-stances, 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 explana-tion appearing from his evidence.â€
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 circum-stances which may exonerate an
accused. Again, when a person does not act with some intention other than that which the charac-ter 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 Williamsâ€"Proof of Guilt, Ch. 7, page 127 and following) and the interesting discussionâ€"para 527
nega-tive averments and para 528â€"“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 estab-lished 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 with-out one, must be especially within the knowledge of the traveler himself : see Section 106 of the Indian Evidence Act, illus-trations (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 propo-sition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of
explana-tion 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
countervailing 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 proposi-tion 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 rea-sonable 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.
re-ported 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 sightâ€, “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 rebuttedâ€. 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 prosecu-tor) 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.â€
24. Thereafter, recently, in the matter of Santosh @ Bhure v. State (G.N.C.T.) of Delhi 2023 LiveLaw (SC) 418 it has been held that even if the
accused fails to explain as to how the dead body of the deceased was found in his apartment, an inference of his guilt cannot be drawn. In nutshell, in
any case the prosecution has to elevate its case from the realm of “may be true†to the plane of “must be true†as is indispensably required
for conviction on the criminal charge.
25. Returning to the facts of the present case in the light of the principles of law laid down by their Lordships in the above-mentioned judgments, it is
quite vivid that the appellant had two wives, first one has already died in the offence in question and second wife Smt. Hansi Bai (PW-3) has stated
that her husband used to stay in both the places some-time at Saddu with the deceased and some-time with her at Bhatgaon and there is no evidence
on record that on the date of offence, the appellant was staying with the deceased at the house of appellant at BSUP Colony, Saddu. Furthermore,
there is no question put to the accused under Section 313 of Cr.P.C. that the appellant & deceased both were staying together on the date of offence
at the house in question from where the dead body of the deceased was recovered. Though, the dead body has been recovered pursuant to the
information given by the appellant, but with regard to this incriminating circumstance that appellant & deceased both stayed together on the date of
offence, explanation of the accused/appellant ought to have been taken, which has not been done and therefore, this piece of evidence cannot be
considered as an incriminating circumstance. As such, invocation of Section 106 of the Indian Evidence Act is not established at all. Though, the
recovery of axe stained with human blood is found established by the trial Court, but in view of the decision rendered by the Supreme Court in the
matter of Raja Naykar v. State of Chhattisgarh 2024 SCC Online SC 67 only on the basis of recovery of bloodstained weapon, the accused/appellant
cannot be convicted for offence under Section 302 of I.P.C.
26. In view of the above, the impugned judgment of conviction and order of sentence dated 18.05.2016 is set aside. The appellant stands acquitted
giving him benefit of doubt of the charge framed against him for the offence under Section 302 of Indian Penal Code. Accordingly, the appellant is
directed to be released forthwith from jail, unless he is required in any other offence.
27. In the result, the appeal is allowed.
28. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court for necessary information and
action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail
sentence.
