1 CRA No. 1072 of 2018 2025:CGHC:34814-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1072 of 2018 [Arising out of judgment dated 22.01.2018 passed in Sessions Trial No.12/2017 by the Sessions Judge, Mungeli, District Mungeli, Chhattisgarh.]  Sanju @ Sanjay S/o Panchu Yadav, aged about 19 years, R/o Village Baihakapa, Chowki Fastarpur, Police Station City Kotwali, Mungeli, District Mungeli, Chhattisgarh. ... Appellant versus  State of Chhattisgarh through Police Chowki Fastarpur, Police Station City Kotwali, Mungeli, District Mungeli, Chhattisgarh. ... Respondent For Appellant :- Mr. Shrawan Kumar Chandel, Advocate. For State-Respondent :- Mr. H.A.P.S. Bhatia, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sachin Singh Rajput Judgment On Board (22.07.2025) Sanjay K. Agrawal, J 1. Feeling dissatisfied and aggrieved by judgment dated 22.01.2018 passed by the Sessions Judge, Mungeli, District Mungeli, Chhattisgarh in Sessions Trial No.12/2017, the ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.07.24 17:05:24 +0530 2 CRA No. 1072 of 2018 appellant herein preferred this appeal under Section 374(2) of the CrPC, by which he has been convicted for offences under Section 302 of the IPC and sentenced thereunder to suffer imprisonment for life and to pay fine of 1,000/-, in default ₹ of payment of fine, the appellant has to undergo additional rigorous imprisonment for 2 months and for offence under Section 201 of the IPC and sentenced thereunder to suffer rigorous imprisonment for 3 years and to pay fine of 500/-, ₹ in default of payment of fine, the appellant has to undergo additional rigorous imprisonment for 1 month. 2. It is pertinent to mention here that by the said impugned judgment co-accused Duwasiya Bai has also been convicted for offence under Section 201 of the IPC and sentenced thereunder to suffer simple imprisonment for 11 days and to pay fine of 500/-; in default of payment of fine, she has to ₹ undergo additional simple imprisonment for 1 month. Prosecution Case:- 3. Factual matrix of the case is that on 27.11.2016 at about 9:00 pm at village Baihakapa, Chowki Fasterpur, Thana City Kotwali, Mungeli, District Mungeli, Chhattisgarh, in the 3 CRA No. 1072 of 2018 house of Panchuram, the appellant herein along with the co- accused Duwasiya caused the death of Panchuram by throttling. Thereafter, to screen from the offence, co-accused spread the false news that Panchuram was died due to chest pain and thereby committed the offence. 4. At the instance of co-accused Duwasiya unnumbered dehati merg intimation and numbered merg intimation were registered vide Exs.P/14 & P/19, respectively. Inquest proceedings (Ex.P/6) were conducted and the dead body of the deceased was sent for postmortem. Spot map was prepared vide Exs.P/13 and crime details forms were prepared vide Exs.P/16 & P/19. As per postmortem report (Ex.P/20) proved by Dr. Sanjay Oberai (PW-11) cause of death was throttling which leads to asphyxia and death was homicidal in nature. FIR was lodged against the appellant for the offence in question vide Ex.P/18. Wheels of investigation started running and the appellant was arrested. 5. After due investigation, appellant herein was charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The 4 CRA No. 1072 of 2018 appellant / accused abjured his guilt and entered into defence. 6. In order to bring home the offence, prosecution has examined as many as 11 witnesses and exhibited 20 documents and defence in support of its case has neither examined any witness nor exhibited any document. 7. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the parties :- 8. Mr. S.K. Chandel, learned counsel for the appellant, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt. He would also submit that there is no eye-witness account to the incident and the appellant has been convicted solely on the basis of weak circumstantial evidence. He would further submit that 5 CRA No. 1072 of 2018 though the trial Court has invoked Section 106 of the Indian Evidence Act, 1872 (for short “IEA”) to base the conviction of the appellant, but there is no evidence has been brought on record by the prosecution that the appellant and the deceased only two inmates were in the house in question at the relevant point of time and even as per the finding recorded by the trial Court, except the appellant, her mother Duwasiya, co-accused, was also residing in the house in question and thus it cannot be said that the appellant was the sole inmate in the house in question and, therefore, there could be other hypothesis which cannot be excluded altogether. Thus, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed. 9. Mr. H.A.P.S. Bhatia, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. He would also submit that the appellant and the deceased used to live in the house in question and on the date and time of offence the appellant was present, therefore, he is required to explain in his statement recorded under Section 313 of the 6 CRA No. 1072 of 2018 CrPC as to how and under what circumstances his father Panchuram died which he failed and, as such, the trial Court has rightly invoked Section 106 of the IEA to base the conviction of the appellant herein. Thus, the appeal deserves to be dismissed. 10. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the meticulously. Discussion & Analysis:- 11.The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/20) proved by Dr. Sanjay Oberai (PW-11), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature. 12.Now, the question for consideration would be whether the appellant has assaulted the deceased? 7 CRA No. 1072 of 2018 13.The trial Court has proceeded to convict the appellant for offence under Sections 302 and 201 of the IPC by invoking Section 106 of the IEA as the dead body of Panchuram was found in the house in question where the appellant used to reside along with the deceased. Therefore, the appellant is required to explain in his statement recorded under Section 313 of the CrPC as to how and under what circumstances his father Panchuram died. 14.Now, the question is whether the trial court has rightly invoked Section 106 of the IEA to convict the appellant? 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 Section 106 which is an exception to the general rule governing 8 CRA No. 1072 of 2018 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 Balvir Singh v. State of Uttarakhand 1 their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the IEA, 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 cannot 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 modified 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 establish 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 1 2023 SCC OnLine SC 1261 9 CRA No. 1072 of 2018 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 explanation is to relieve the prosecution of its legitimate 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 circumstances, 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 explanation appearing from his evidence.” 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 circumstances which may exonerate an accused. Again, when a person does not act with some 10 CRA No. 1072 of 2018 intention other than that which the character 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 Williams— Proof of Guilt, Ch. 7, page 127 and following) and the interesting discussion—para 527 negative averments and para 528—“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 established 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 without one, must be especially within the knowledge of the traveler himself:see Section 106 of the Evidence Act, illustrations (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 proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation 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 counter-vailing 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 proposition 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 11 CRA No. 1072 of 2018 he is guilty beyond a reasonable 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. reported 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 sight”, “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 rebutted”. 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 prosecutor) 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.” 12 CRA No. 1072 of 2018 18.Similarly, in the matter of Anees v. The State Govt. of NCT2, their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the IEA, have held in paragraphs 47 to 55 as under:- “47. But Section 106 of the Evidence Act 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 to the accused but also to others, if they happened to be present when it took place. The intention underlying the act or conduct of any individual is seldom a matter which can be conclusively established; it is indeed only known to the person in whose mind the intention is conceived. Therefore, if the prosecution has established that the character and circumstance of an act suggest that it was done with a particular intention, then under illustration (a) to this section, it may be assumed that he had that intention, unless he proves the contrary. 48. 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 proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation 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, if in a position, should go forward with counter-vailing 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 proposition 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 reasonable doubt before it can convict. However, the accused's failure to present 2 2024 SCC Online SC 757 13 CRA No. 1072 of 2018 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 arise therefrom. 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 [See: Balvir Singh v. State of Uttarakhand, 2023 SCC OnLine 1261] ii. What is “ prima facie case ” (foundational facts) in the context of Section 106 of the Evidence Act? 49. The Latin expression prima facie means “at first sight”, “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 “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. 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 prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the case or charges against the defendant. If they cannot present prima facie evidence, the initial claim may be dismissed without any need for a response by other parties. 50. 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 guilt of the accused. 51. The presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. 52. To explain what constitutes a prima facie case to make Section 106 of the Evidence Act applicable, we should refer to the decision of this Court in State of W.B. v. Mir Mohammad and ors. (2000) 8 SCC 382, wherein this Court has observed in paras 36 and 37 respectively as under: 14 CRA No. 1072 of 2018 “36. In this context we may profitably utilize the legal principle embodied in Section 106 of the Evidence Act which reads as follows: “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.” (Emphasis supplied) 53. We should also look into the decision of this Court in the case of Ram Gulam Chaudhary & Ors. v. State of Bihar, (2001) 8 SCC 311, wherein this Court made the following observations in paragraph 24 as under: “24. Even otherwise, in our view, this is a case where Section 106 of the Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and then a chhura-blow was given on the chest. Thus chhura-blow was given after Bijoy Chaudhary had said “he is still alive and should be killed”. The appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the appellants. The appellants have given no explanation as to what they did after they took away the body. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the court, there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable 15 CRA No. 1072 of 2018 doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. We, therefore, see no substance in this submission of Mr. Mishra.” (Emphasis supplied) 54. Cases are frequently coming before the courts where the husband, due to strained marital relations and doubt as regards the character, has gone to the extent of killing his wife. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, like in the case at hand, even if he is a witness of the crime, would come forward to depose against another family member. 55. If an offence takes place inside the four walls of a house and in such circumstances where the accused has all the opportunity to plan and commit the offence at a time and in the circumstances of his choice, it will be extremely difficult for the prosecution to lead direct evidence to establish the guilt of the accused. It is to resolve such a situation that Section 106 of the Evidence Act exists in the statute book. In the case of Trimukh Maroti Kirkan (supra), this Court observed that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. The Court proceeded to observe that a Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character, which is almost impossible to be led, or at any rate, extremely difficult to be led. The duty on the prosecution is to lead such evidence, which it is capable of leading, having regard to the facts and circumstances of the case.” 19.Coming to the facts of the present case in light of the principles of law laid down by their Lordships of the 16 CRA No. 1072 of 2018 Supreme Court in the above stated judgments, it is quite vivid that from the statements of PW-1 Krishna Yadav & PW- 2 Narendra Yadav, brothers of the appellant herein, that on the relevant date and time of offence they were also in the house in question along with the appellant, co-accused Duwasiya and the deceased. Even otherwise, the trial Court has itself recorded the finding that the except the appellant and the deceased co-accused Duwasiya was also present in the house in question, therefore, it cannot be said that the fact of alleged assault by the appellant on his father Panchuram was within the special knowledge of the appellant only. As such, the finding recorded by the trial Court that the incident is only within the special knowledge of the appellant herein, in our considered opinion is not a correct finding, particularly, when co-accused Duwasiya, PW-1 Krishna Yadav & PW-2 Narendra Yadav were also residing with the appellant and the deceased in the house in question and co- accused Duwasiya has only been convicted for offence under Secton 201 of the IPC. Except that, in light of decision of the Supreme Court in the matter of Nagendra Sah v. State of Bihar 3 we could not exclude the fact of another hypothesis, 3 (2021) 10 SCC 725 17 CRA No. 1072 of 2018 when other members were also present at the relevant point of incident along with the appellant and the deceased and the facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant. As such, the prosecution has only proved the death of deceased Panchuram to be homicidal in nature, except that the prosecution has not been able to prove its case beyond reasonable doubt and also not able to complete the chain of circumstances in light of decision of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 4 . In that view of the matter, the trial Court has wrongly invoked Section 106 of the IEA to base the conviction of the appellant and we hereby reject the same and, therefore, the appellant is entitled for acquittal on the benefit of doubt. Conclusion:- 20. In view of the aforesaid discussion and analysis, the impugned judgment of conviction and order of sentence dated 22.01.2018 passed by the trial Court convicting and sentencing the appellant for the offence under Sections 302 and 201 of the IPC, is hereby set aside and the appellant is 4 (1984) 4 SCC 116 18 CRA No. 1072 of 2018 entitled for acquittal on the basis of principle of benefit of doubt. Appellant is stated to be on bail. He need not surrender. However, his bail bond shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC. 21. This criminal appeal is allowed. 22. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge Ankit