1 2025:CGHC:2192-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 604 of 201 9 (Arising out of judgment dated 08.03.2019 passed in Sessions Trial No. 32/2017 by the learned Sessions Judge, Sakti) 1. Laxminarayan @ Lala S/o Late Mahesh Kumhar, aged about 26 years, R/o Chintaram Colony, Ward No. 14, Sakti, P.S. Sakti, District – Janjgir Champa, Chhattisgarh. 2. Janki Bai W/o Late Mahesh Kumhar, aged about 65 years, R/o Chintaram Colony, Ward No. 14, Sakti, P.S. Sakti, District – Janjgir Champa, Chhattisgarh. ---Appellants Versus • State of Chhattisgarh, Through – Station House Officer, Police Station Sakti, civil and Revenue District – Janjgir Champa, Chhattisgarh. ---Respondent For Appellants :- Mr. Manoj Kumar Jaiswal, Advocate For State-Respondent :- Mr. Ashish Shukla, Addl. Advocate General & Mr. Ashutosh Shukla, Panel Lawyer. DB: Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (14.01.2025) Sanjay K. Agrawal, J. Digitally signed by HEERA LAL SAHU Date: 2025.01.16 10:58:02 +0530 2 1. The appellant Laxminarayan @ Lala (A-1) and the appellant Janki Bai (A-2) both have preferred this appeal under Section 374(2) of the CrPC, calling in question the validity, legality and correctness of the impugned judgment dated 08.03.2019, passed by learned First Additional Sessions Judge, Sakti, District – Janjgir Champa (C.G.) in Sessions Trial No. 32/2017, whereby they have been acquitted for the offences punishable under Sections 498-A, 304-B/34 of IPC and have been convicted and sentenced as under, with a direction that main sentences are to be run concurrently and additional imprisonment are to be run separately after main sentences:- Conviction Sentence U/s 302/34 of IPC Life imprisonment and fine of Rs. 5,000/-, in default of payment of fine amount additional imprisonment for 6 months. U/s 201/34 of IPC Rigorous imprisonment for 3 years and fine of Rs. 1,000/-, in default of payment of fine amount additional imprisonent for 6 months. 2. The case of the prosecution, in short, is that on 05.08.2017 at 03:00 pm. At Chintaram Colony, Police Station Sakti, District – Janjgir-Champa, the two appellants herein in furtherance of their common intention strangulated Rajkumari (now deceased), the wife of A-1 and also tried to 3 conceal the evidence of murder, thereby committed the offences under Sections 302/34 and 201/34 of IPC. 3. Further, the case of the prosecution, in a nutshell, is that complainant Rajesh Kumhar (PW-5) along with Luv Yadav went to the police station and gave oral intimation to this effect that on 05.08.2017 at 3:00 p.m. he was at home, his mother Janaki Bai (A-2) came to his house and informed that daughter-in-law Rajkumari died in her room by hanging herself with a towel, which was taken down and kept in the shade, so he immediately went to his mother's house and saw that Rajkumari was lying dead in the shade. He informed the relatives and went to the police station to report. On the said basis, Merg Intimation No. 49/17 under section 174 Cr.P.C. was registered vide Ex.P-9 in police station Sakti and information was sent to SDM Sakti. During the investigation, it was found that the dead body of the deceased was lying on the bed in the adjacent room, away from the room where the incident took place. The towel with which the deceased's husband Laxminarayan (A- 1) had said that she had hanged herself, did not have any knot or any shrinkage mark due to hanging, etc., and it was said that the dead body was taken out by Laxminarayan alone, which was not possible. The dead body of the deceased was sent for postmortem examination which was conducted by, Dr. Prashant Singh Bais (PW-9) 4 vide Ex.P/21 in which the cause of death was opined to be strangulation and the nature of death was homicidal. During the course of investigation, it is found that it is clearly written in the postmortem report that the murder was committed by strangulation. When husband Laxminarayan (A-1) and mother-in-law Janki Bai (A-2) were found to have committed the above crime by giving false information of death by hanging and then hiding evidence, FIR was registered vide Ex.P-27 against the appellants. Inquest was conducted vide Ex.P/4. After completion of investigating, charge sheet was filed against the appellants. 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 13 witnesses, exhibited 28 documents and article 1. The statement of the appellants was recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, A-1 in support of their defence has examined himself as DW-1. 5. After conclusion of the trial, the trial Court, on appreciation of the oral and documentary evidence available on record, convicted the appellants for the offence punishable under Sections 302/34 and 201/34 of I.P.C. and sentenced them as mentioned above in the opening para of this judgment 5 against which the present appeal has been preferred by the appellants. 6. Learned counsel for the appellants submits that the learned trial Court has absolutely not justified in convicting the appellants for the aforesaid offences by the aid of Section 106 of the Evidence Act as there is no evidence that at the date and time of the offence, the appellants were along with the deceased. He further submits that as per the statement of A-1 (DW-1), he went to his shop on that date and when he returned home from his shop he saw that the dead body of the deceased was hanging, as such, the trial Court has wrongly invoked Section 106 of Evidence Act to convict the two appellants. As such, the impugned judgment is liable to be set aside and the appellants are entitled for acquittal on the basis of benefit of doubt. 7. Mr. Ashish Shukla, Additional Advocate General, supports the impugned judgment and submits that Rajesh Kumhar (PW-5), the brother of A-1 and son of A-2 has clearly stated that the two appellants were living along with Rajkumari (deceased) separately, as such, the trial Court has rightly invoked Section 106 of Evidence Act, the prosecution has been able to bring home the offence beyond reasonable doubt, and the conviction of the appellants for the offences under Sections 302/34 & 201/34 of I.P.C. is well merited, as such, the appeal deserves to be dismissed. 6 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 9. The first question for consideration is, whether the death of deceased Rajkumari was homicidal in nature? 10. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex.P-21 proved by Dr. Prashant Singh Bais (PW-9) that the death of the deceased was homicidal in nature, which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 11. Now, the question would be whether the appellant is the author of the crime in question? 12. In the instant case, there is no direct evidence available on record and case of the prosecution is solely 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 Maharashtra1 which must be fulfilled for convicting an accused on the basis of circumstantial evidence. The relevant paragraph 153 of the said judgment reads as under: - 1 (1984) 4 SCC 116 7 “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 Maharashtra2 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.” 13. The learned trial Court after considering the material available on record has held that there is no evidence to show 2 (1973) 2 SCC 793 8 that the two appellants-accused treated Rajkumari (deceased) with cruelty in connection with the demand of dowry and acquitted them of the offence punishable under Section 304- B/34 of IPC and proceeded to convict them solely on the basis of applying Section 106 of Evidence Act, considering that the two appellants and deceased Rajkumari were in the house on the date and time of the offence in absence of the explanation under Section 313 of Cr.P.C., it has to be held that it is the appellants who has strangulated to deceased and thereby convicted them for the offence punishable under Section 302/34 of IPC. 14. 14. Now, the question is whether the trial Court is justified in invoking Section 106 of the Evidence Act to convict the appellants for the offence under Section 302 of IPC. 15. At this stage, it would be appropriate to quote Section 106 of the Evidence Act, which 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.” 16. The said 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 9 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 recent decision of the Hon’be Supreme Court in the matter of Manharan Rajwade Vs. State of Chhattisgarh3, the Hon’ble Supreme Court has clearly held that for invoking Section 106 of the Evidence Act, the prosecution ought to have discharged the burden on it by adducing cogent evidence to prove the appellants’ presence at the relevant time in his house and in paras 7 to 10 held as under: “7. For invoking Section 106 of the Evidence Act, the prosecution ought to have discharged the burden on it by adducing cogent evidence to prove the appellant’s presence at the relevant time in his house. In this case, going by the evidence of PW-1, the deceased had already died before 5:00 p.m., and the said witness stated that the appellant came back home at 7:00 p.m. There is no evidence to prove the theory of the last seen together. Therefore, the prosecution has not discharged the burden on it to prove that the appellant was last seen together with the deceased wife. Thus, Section 106 of the 3 MANU/SC/0803/2024 10 Evidence Act cannot be invoked to shift the burden on the appellant. 8. Even the appellant's answer given to question no.27, if taken in its entirety, does not support the prosecution. The appellant vaguely stated that he came back around 4:00-5:00 p.m. when PW-1 and PW-2 were in the house and told him that the deceased was not talking and moving. Thus, he reached home after the death of his wife. The allegation was that the death was caused due to strangulation by the appellant. 9. Therefore, the prosecution has miserably failed to prove the only circumstance it relied upon, namely, that the appellant and the deceased were last seen together. Therefore, the prosecution has failed to bring home the charge of the offence of murder punishable under Section 302 of the IPC. 10. Hence, the impugned judgments and orders are set aside, and the appellant is acquitted of the offence alleged against him. The appellant shall be forthwith set at liberty unless his detention is required in any other case. “ 18. Reverting to the facts of the present case it is quite vivid that in this regard the prosecution has only examined Rajesh Kumhar (PW-5) who only stated that appellants were living separately from him after separation and when he came back from his shop, it is informed by his mother Janki Bai (A-2) that Rajkumari (deceased), wife of A-1 has hanged herself, thereafter, he immediately visited the house of Ramnarayan (A-1) where Rajkumari was lying dead and Laxminarayan (A-1) was crying, the incident was taken place on 05.08.2017 at 3:00 pm at broad daylight except 11 this there is nothing on record to show that the two appellants (A-1 & A-2) were in the house at the time when the Rajkumari was found dead in their house. However, in this regard, appellant Laxminarayan (A-1) has examined himself before the trial Court as defence evidence (DW-1) in which he has clearly stated that on the date of offence i.e. 05.08.2017 at 8:00 to 9:00 am he had gone to his shop and when he came back in the afternoon at about 2:00 pm then he found that Rajkumari (deceased) hanged herself and at that time his mother Janki Bai (A-2) also returned after working as a maid. No cross-examination has been made on behalf of the prosecution and para 2 of the statement of DW-1 would show that he was present on the date and time of the offence in his shop. Even otherwise no question has been put to the two accused persons on the basis of evidence avialble on record that the two appellants were there in the house on the date and time of offence i.e. 05.08.2017 at 3:00 pm. As such, the principle as laid down by the Hon’ble Supreme Court in the matter of Manharan Rajwade (supra) would clearly apply in the case in hand and it could not established by the prosecution that the two appellants (A-1 & A-2) and the deceased were last seen together on the date and time of the offence i.e. 05.08.2017 at 03:00 pm. As such, though the prosecution has been able to prove that the deceased was homicidal in nature, 12 but Section 106 of the Evidence Act has wrongly been invoked in the absence of proof that the two appellants and the deceased were last seen together at their house on 05.08.2017 at 03:00 pm. In that view of the matter, the trial Court has absolutely unjustified in convicting the two appellants for the offences punishable under Sections 302/34 & 201/34 of IPC. 19. Accordingly, we are of the considered opinion that the appellants are entitled for acquittal on the ground of benefit of doubt. The conviction of the appellants for the offences under Sections 302/34 & 201/34 of I.P.C. is hereby set aside and they are acquitted of the said charges. Since the appellant Laxminarayan (A-1) is in jail since 12.08.2017, we direct that he be released from jail forthwith, if not required in any other case. Appellant Janki Bai (A-2) is reported to be on bail, she need not to surrender in this case. 20. Accordingly, this Criminal Appeal is allowed. 21. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and to the Superintendent of Jail where A-1 lodged and suffering jail sentence, for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge H.L. Sahu