Sukul Ram vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 28.03.2014 passed by learned Sessions Judge, Sarguja (Ambikapur) in Sessions Trial No.140/2013, by which the appellant herein has been convicted for the offence under Section 302 of I.P.C. and sentenced to life imprisonment with fine of Rs.1000/- and in default of payment of fine, 6 months additional rigorous imprisonment.

Case of the prosecution, in brief, is that on 27.12.2012 in between 2:00 a.m. to 7:00 a.m., the appellant assaulted his wife Bifaiyabai by Tangi at village Labji-Thihaipara, Police Station-Gandhinagar, District Sarguja and thereby offence has been committed. Further case of the prosecution is that the appellant and deceased being husband and wife used to live together and son Tejkumar (PW-2) was living separately, but on the date of offence, the appellant, deceased and son Tejkumar consumed liquor together and Tejkumar left the company of the appellant and deceased at night to sleep. Then in the morning, when his father and mother (appellant and deceased) did not woke up, then he went inside the house and saw that his mother was lying dead and she had suffered injuries on left leg. Then, he informed the matter to the police and shav-panchnama was conducted vide Ex.P-5 and dead body was sent for post mortem, which was conducted by Dr. Ajay Gupta (PW-1), who proved the post-mortem report vide Ex.P-1, according to which cause of death was internal injuries, excessive bleeding and shock and death was homicidal in nature. Thereafter, pursuant to memorandum statement of the appellant, Tangi was seized vide Ex.P-11, which was sent for examination to FSL and in the FSL report dated 19.12.2013, from the seized Tangi, blood was found and on petticoat of the deceased, human blood was found and on other articles also blood was found. After due investigation, the appellant was charge-sheeted for the aforesaid offence under Section 302 of I.P.C. to the jurisdictional criminal court, which 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.

In order to bring home the offence, prosecution examined as many as 9 witnesses and exhibited 18 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

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 the judgment, against which this appeal has been preferred.

Mr. Shailendra Sharma, learned counsel for the appellant, would submit that conviction of the appellant is based on no evidence, though prosecution has alleged that it is house murder, but the prosecution has failed to bring home the offence against the appellant beyond reasonable doubt. Therefore the appellant is entitled to be acquitted and the appeal deserves to be allowed.

Per contra, Mr. Ravi Bhagat, learned State counsel, would submit that the prosecution has been able to prove the offence beyond reasonable doubt and the learned trial Court has rightly convicted the appellant for the offence under Section 302 of I.P.C. He submits that it is house murder and pursuant to memorandum statement of the appellant, axe has been seized on which blood has been found in the FSL report and the appellant has not explained as to how his wife died in the home, as such, the appeal deserves to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

The first question for consideration as to whether the death of deceased Bifaiyabai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the statement of Dr. Ajay Gupta (PW-1) who has proved the post-mortem report Ex.P-1. In our considered opinion, the finding recorded by the trial Court holding the death of deceased to be homicidal in nature is 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.

Now, the next question is whether appellant is the author of the crime ?

Admittedly, on 27.12.2012, the appellant, deceased and their son Tejkumar (PW-2) consumed liquor together and Tejkumar (PW-2) left the company of the appellant and deceased and both were sleeping and the appellant and deceased were all alone in the house and in the morning, when Tejkumar (PW-2) went inside the house of the appellant, the deceased was found lying dead with injuries on her left leg and death has been found to be homicidal in nature. Pursuant to the memorandum statement of the appellant, Tangi has been seized on which human blood has been found in FSL report, but no explanation is forthcoming from the statement of appellant under Section 313 of Cr.P.C. Rather in a statement under Section 313 of Cr.P.C. while answering the question No.6, 7, 8, 9, 11 & 18, he has clearly admitted that the appellant and deceased both were in the house on the fateful day and place of offence is inside the house and dead body was found inside the house and appellant and deceased used to stay together. He has also admitted that police party has taken the Tangi from his house. As such, the prosecution has been able to prove the death to be homicidal in nature, the incident occurred inside the house and appellant and deceased were alone on the fateful night on the date of offence and they consumed liquor together and thereafter their son Tejkumar (PW-2) has left the company of the appellant and deceased. Accordingly, the trial Court has answered in affirmative that the appellant is author of the crime relying upon the circumstantial evidence available on record. The trial Court has convicted the appellant with the aid of Section 106 of the Evidence Act holding that it is house murder, which the appellant was required to offer explanation in the statement under Section 313 of Cr.P.C., which he has failed to offer and consequently, finding other circumstances established proceeded to convict him for offence under Section 302 of I.P.C.

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 Harijan Bhala Teja v. State of Gujarat AIR 2016 SC 2065, the Supreme Court has held that where the postmortem report establishes homicidal nature of death and since the accused only was staying with his wife at time of her death, it is for the accused to show has to in what manner she died and relying upon Section 106 of the Indian Evidence Act in paragraph 19 of the report it was held as under: -

“19. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since it is proved on the record that it was only the appellant who was staying with his wife at the time of her death, it is for him to show as to in what manner she died, particularly, when the prosecution has successfully proved that she died homicidal death.”

Likewise, in the matter of Gajanan Dashrath Kharate v. State of Maharashtra AIR 2016 SC 1255, where the accused (Gajanan Dashrath Kharate) alleged to have killed his father and accused has not offered any explanation for homicidal death of his father, conviction was affirmed by the Supreme Court by holding as under in paragraph 14: -

“14. Upon appreciation of oral evidence and the circumstance of the recovery of blood stained clothes of the accused and the conduct of the accused in not offering any explanation for the homicidal death of his father, by concurrent findings, the trial court and the High Court rightly convicted the appellant-accused under Section 302 IPC and we do not find any reason to interfere with the impugned judgment.”

Reverting to the facts of this case, in light of the aforesaid principles laid down by the Supreme Court, it is quite vivid that the prosecution has proved the death to be homicidal in nature . The prosecution has further proved that the appellant and deceased were alone in the house, which has been proved by their own son Tejkumar (PW-2), who has left the company of the appellant and deceased and in the morning, the deceased was found dead and while answering the question in Section 313 of Cr.P.C., it has been admitted by the appellant that they were in the house together only and incident occurred inside the house and seizure of blood-smeared axe has also been established; more particularly while answering question No.18, the appellant in his statement under Section 313 of Cr.P.C. has stated that the incident took place inside the house, as such, the appellant was required to explain as to how his wife suffered serious injuries in the house & died, which he admittedly not explained in the statement under Section 313 of Cr.P.C. In our considered opinion, the above chain of circumstances is complete and leads only to one conclusion that it was the accused/appellant who caused the death of the deceased and he alone committed the murder of the deceased. The view taken by the learned trial Court that the appellant is the author of crime is a pure finding of fact based on evidence available on record and we are of the opinion that in the present case, the only view possible was the one taken by the trial Court.

On the basis of aforesaid discussion, we are of the view that the appeal deserves to be and is accordingly dismissed.