Ajay Singh Rajput VsState Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of CrPC has been preferred by the appellants herein against the impugned judgment dated 30/08/2014 passed by learned Additional Sessions Judge, Katghora, District Korba in Sessions Trial No. 109/2013 whereby they have been convicted for offences punishable under Sections 302/34 and 201/34 of IPC and sentenced to undergo life imprisonment with fine of Rs. 1000/- in default of fine, additional R.I. for 6 months; and R.I. for 3 years with fine of Rs. 500/- in default of fine, additional R.I. for 3 months, respectively. Since appellant No. 1 has died, his appeal has been dismissed having become abated vide order dated 14/03/2023.

Case of the prosecution, in brief, is that on 04/02/2013 in between 9:15 PM to 9:30 PM at village Ayodhyapuri within the ambit of Police Station Darri, the appellants herein, in furtherance of their common intention of causing death of Mangal Singh, strangulated him with a dupatta and caused his death and in order to screen themselves from the offence, they branded the nature of death of deceased Mangal Singh to be suicide by hanging and they, thereby, committed the aforesaid offences.

It is admitted position on record that appellant No. 1 was the father of the deceased and appellant No. 2 is the wife of the deceased. Further case of the prosecution is that on 04/02/2013, Shankar Singh, brother of the deceased, reported the incident at Police Station Darri that deceased Mangal Singh was mentally unwell from prior 2-3 months and he committed suicide by hanging himself in his room and when his wife found him hanging, she shouted and called the rest of the family members who then took Mangal Singh to the Hospital but he was declared dead therein. On the basis of the said information, merg intimation was registered vide Ex. P/14 and upon merg inquiry, Police summoned the witnesses vide Ex. P/9 and conducted inquest vide Ex. P/10. Thereafter, the dead body of Mangal Singh was subjected to postmortem which was conducted by Dr. R.K. Divya (P.W.-13) and as per the postmortem report (Ex. P/15), cause of death is said to be asphyxia due to obstruction of air passages secondary to antemortem strangulation and the nature of death is said to be homicidal. Nazri naksha was prepared and statements of the witnesses were recorded. At the instance of Raghuveer Ukey (P.W.-27), the sari by which the deceased was found hanging was seized vide Ex. P/6. First information report was lodged against unknown person vide Ex. P/18. On 17/10/2013, memorandum statement of appellant No. 1 was recorded vide Ex. P/4 and on that basis the dupatta allegedly used to strangulate the deceased was seized from appellant No. 2 vide Ex. P/5. It is the case of the prosecution that Jitendra Kumar (P.W.-4) is the eye-witness to the incident and deceased Mangal Singh used to drink liqour frequently and after quarrelling with his father and his wife, he used to abuse them. On 04/02/2013, the appellants were at home and at about 7 PM, deceased Mangal Singh came home under the influence of liqour and started abusing the appellants. When appellant No. 1 asked the deceased to come inside silently, he threatened to kill appellant No. 1 and thereafter, he also abused his wife appellant No. 2 and also committed maarpeet with her, thereafter, both the appellants tied a dupatta around the neck of the deceased and strangulated him and caused his death and thereafter, they hanged him and branded his death to be suicidal. After due investigation, the appellants were charge-sheeted for offences punishable under Sections 302 and 201/34 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellants abjured their guilt and entered into defence.

In order to bring home the offence, prosecution examined as many as 14 witnesses and brought on record 25 documents. Statements of the appellants were taken under Section 313 of CrPC wherein they denied guilt and they examined only 2 witnesses, however, they did not bring any document on record.

Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased Mangal Singh to be homicidal in nature and further finding the appellants to be the authors of crime in question, proceeded to convict them for offences punishable under Sections 302/34 and 201/34 of IPC and sentenced them as aforesaid.

Mr. H.V. Sharma, learned counsel for the appellants, would submit that the trial Court has failed to appreciate that the memorandum and seizure witnesses namely Ranjit Maiti (PW-5) and Shaturhan (PW-6) have turned hostile and not supported the case of the prosecution and memorandum and seizure is not an incriminating circumstance against appellant No.2, Jyoti Rajput, and the incriminating circumstance of last seen together has also not been established by the prosecution and the prosecution has also failed to establish the motive of the case and even Abhitabh Shrivastava (PW-2) in his para 5 of the statement before the Court stated that the appellants and deceased were having the cordial relationship, as such, strong suspicion is not the ground for conviction for offence under Section 302 of the IPC. He would also submit that the death of the deceased has not been proved to be homicidal in nature it was rather suicidal in nature, therefore, the appellant No. 2 is entitled for acquittal on benefit of doubt and appeal deserves to be allowed.

Mr. Sudeep Verma, learned State counsel, would support the impugned order and submit that the trial Court has rightly held that the death of the deceased – Mangal Singh, is homicidal in nature and considering the evidence available on record the trial Court rightly convicted the appellant No.1, Ajay Sing Rajput (now died) and appellant No.2 Jyoti Rajput @ Rannu, for the offence under Section 302 of the IPC and, as such, the appeal deserves to be dismissed.

We have heard learned counsel for the parties, considered the rival submission of the parties made herein-above and gone through the records with utmost circumspection.

The first question is, whether the death of deceased Mangal Singh was homicidal in nature which the trial Court has answered in affirmative relying upon the postmortem report (Ex. P/15) proved by Dr. R.K. Divya (PW-13) in which he opined the cause of death of deceased Mangal Singh is said to be asphyxia due to obstruction of air passages secondary to antemortem strangulation and homicidal in nature. The Station House Officer has again made request for clarification regarding cause of death and again Dr. R.K. Divya (PW-13) opined in his query report dated 28.06.2013 vide Ex. P/16 that it is not the case of hanging but it is the case of strangulation. The trial Court relying upon the postmortem report (Ex.P/15) and query report (Ex.P/16) which are proved by Dr. R.K. Divya (PW-13) came to the conclusion that the death of deceased – Mangal Singh, was homicidal in nature, which in our considered opinion is the correct finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding and hold that death of Mangal Singh was homicidal in nature.

Now, the question would be, whether the trial Court is justified in holding the appellants to be the authors of the crime?

The prosecution case is based on direct evidence of Jitendra Kumar (PW-4) but he has turned hostile and not supported the case of the prosecution and the trial Court has convicted the appellants on the basis of circumstantial evidence. The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence and which 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 in paragraph 153 are 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.”

Coming to the facts of the instant case, now the trial Court has found the motive of the offence proved and further found that Jitendra Kumar (PW-4) had seen the appellants and deceased together in the house on the date of offence which was supported by the statement of Ayush Singh Thakur (DW-2) son of deceased – Mangal Singh and the appellant No.2 has failed to explain in her statement under Section 313 of the CrPC as to how her husband died in the house in suspicious circumstance.

We shall now consider the correctness of the aforesaid finding to find out whether the trial Court is justified in convicting the appellants for the aforesaid offence.

Motive

The trial Court has found the motive established relying upon the statement of Jitendra Kumar (PW-4) that the deceased used to drink liquor and on that account the appellants were unhappy and used to quarrel with him and that is the reason for causing his death by strangulation. However, Amitabh Shrivastava (PW-2), has clearly admitted in his statement before the Court that deceased had cordial relationship with appellant No.1, father of the deceased and appellant No.2, wife of the deceased, and the quarrel, if any, by the father and wife on account of drinking liquor, is usually, in order to correct the person who is an addict of alcohol and it is an ordinary titbit of life and that cannot be taken as a motive for commission of offence, that too, of murder. Furthermore, Anil Bada (PW-1), Chandrabhan Singh (PW-3) and Jitendra Kumar (PW-4) have clearly stated in their statement before the Court that prior to the alleged incident the deceased had attempted to commit offence twice. Furthermore, Anil Bada (PW-1), Amitabh Shrivastava (PW-2), Chandrabhan Singh (PW-3) and Jitendra Singh (PW-4) have clearly stated that deceased – Mangal singh used to drink liquor too much. As such, the finding of the trial Court that motive stands established cannot be accepted as we are not inclined to accept that on account of drinking liquor by the deceased, appellant No.1, father of the deceased, and appellant No.2, wife of the deceased, had the motive for committing murder of the deceased – Mangal Singh, we hold so accordingly.

Now, the next incriminating circumstance that has been found proved by the trial Court is that the appellant No.1, appellant No. 2 and deceased all three were in the house at the time of incident and seen by Jitendra Singh (PW-4). Since the appellant No.1 and appellant No.2 have not explained in their statements under Section 313 of CrPC as to how deceased – Mangal Singh died, the trial Court has held that failure to explain is one of the most incriminating circumstances which proves the guilt of the appellants herein.

Section 106 of the Indian Evidence Act, 1872, 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.”

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.

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).”

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.

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.

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.”

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.

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.

In the matter of Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, their Lordships of the Supreme Court have held that where the prosecution succeeds in leading the evidence to show that the husband and wife were last seen together and the offence was committed in dwelling house, where the husband also resided, and if the accused husband offers no explanation as to the injuries received by his wife and if the explanation is false, there is a strong circumstance which indicates that he committed the crime and held in paragraph 22 as under:-

“22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh (1972) 2 SCC 80 : AIR 1972 SC 2077 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khukhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal (1992) 3 SCC 300 : AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of T.N. v. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.”

Reverting to the facts of the present case in the light of the principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments (supra), it is quite vivid that the incident occurred in the house of appellant No.1, where he used to reside with his son – deceased and appellant No.2, wife of deceased and her two minor sons namely Ayush Singh Rajput (DW-2), aged about 12 years, and his brother Adarsh, aged about 7 years. Though, Ayush Singh Rajput (DW-2) has admitted that on the date of offence appellants were present in the house but a careful scrutiny of the statements of Anil Bada (PW-1) and Amitabh Shrivastava (PW-2) would show that the brother of the deceased namely Shankar Singh used to run tent house and all the tent house articles were kept in the house of appellant No.1- Ajay Singh Rajput, and Shankar Singh used to work with the help of 15-16 employees and all the employees used to come in the house of appellant No.1 - Ajay Singh Rajput and meals were also prepared in the house of the appellant No.1 - Ajay Singh Rajput for the employees, as such, it is not possible to commit the offence and, that too, the murder of the deceased by the appellants in their presence. As such, there is evidence available on record that not only the deceased and appellants but the two sons of appellant No.2 and deceased namely Ayush Singh Rajput (DW-2), aged about 12 years, and his brother Adarsh, aged about 7 years, both were also present in the house at the time of incident. Particularly, Ayush Singh Rajput (DW-2) in his statement before the Court has clearly stated that when deceased was found dead, his room was bolted from inside and his younger brother Adarsh was sent through the window to open the door and thereafter, the door was opened and they found the deceased hanging, as such, theory of last seen together is not established and further as held by the Supreme Court in the matter of Navaneethakrishnan v. State by Inspector of Police (2018) 16 SCC 161, in case of last seen together the corroboration is required. As such, in the instant case, it is quite vivid, motive has not been proved; witnesses of memorandum and seizure both have turned hostile and they have not supported the case of the prosecution. Furthermore, the eye witness Jitendra Kumar (PW-4) has not supported the case of the prosecution and theory of last seen together has not been established. Anil Bada (PW-1), Amitabh Shrivastava (PW-2), Chandrabhan Singh (PW-3) and Jitendra Kumar (PW-4) have clearly stated that the deceased used to consume liquor and on account of excessive drinking, deceased had lost control of his business of videography and he was suffering from depression. Anil Bada (PW-1), Chandrabhan Singh (PW-3) and Jitendra Kumar (PW-4) have also stated that the deceased had also attempted to commit suicide twice and, therefore, the possibility of committing suicide as projected by the defence cannot be ruled out, as such, prosecution has failed to prove the five golden principles laid down in the matter of Sharadchand Birdichand Sarda (supra) and thus, the trial Court is absolutely unjustified in convicting appellant No. 2 – Jyoti Rajput @ Rannu for the offences in question.

In that view of the matter, appellant No.2 - Jyoti Rajput @ Rannu is entitled for acquittal on the basis of benefit of doubt. Accordingly, the impugned judgment convicting the appellant No. 2 - Jyoti Rajput @ Rannu for offences punishable under Sections 302 and 201 of the IPC and sentencing her as aforesaid is hereby set aside. Presently, she is on bail, therefore, there is no need to surrender, however, her bail bonds shall remain in force for a further period of six months in view of the provisions contained in Section 437A of CrPC.

Accordingly, this criminal appeal is allowed to the extent indicated herein-above.