1 CRA No. 1164 of 2019 2025:CGHC:2372-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1164 of 2019 (Ari sing out of judgment dated 09.04.2019 passed in Sessions Trial No.150/2018 by the Sessions Judge, Raipur, District Raipur, Chhattisgarh. )  Parasram Dhruw S/o Kunwar Lal Dhurw, aged about 40 years, R/o Birgaon, near Shitla Mandir, Police Station Urla Raipur, District Raipur, Chhattisgarh. ... Appellant versus  State of Chhattisgarh through Police Station Amanaka, Raipur, District Raipur, Chhattisgarh. ... Respondent For Appellant :- Mr. Ashok Kumar Swarnkar, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee. For Respondent :- Mr. Vivek Mishra, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (15.01.2025) Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the sole appellant-accused, ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.01.21 17:07:24 +0530 2 CRA No. 1164 of 2019 is to the legality, validity and correctness of the judgment dated 09.04.2019 passed by the Sessions Judge, Raipur, District Raipur, Chhattisgarh, in Sessions Trial No. 150/2018 by which the appellant herein has been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer imprisonment for life with fine of 1,000/-; in default of payment of fine amount to ₹ undergo additional rigorous imprisonment for one month. Prosecution story:- 2. Between 21.06.2013 to 22.06.2013, at Sondongari, Police Station Aamanaka Raipur, Chhattisgarh, the appellant caused the death of his second wife Sushila Bai by strangulation and thereby committed the aforesaid offence. 3. Further case of the prosecution is that the appellant and his second wife Sushila Bai (deceased) used to live in the tenanted accommodation of Rupa Bai (PW-2). On 22.06.2013, at 12:00 pm on suspicion, Rupa Bai (PW-2) with the help of others opened the door of appellant’s room and saw the dead body of Sushila Bai lying on the bed and the appellant was not present in the room. The said incident was reported by Gangaram Sahu (PW-4), nephew of PW-2, pursuant to which merg was registered vide 3 CRA No. 1164 of 2019 Ex.P/5. FIR was registered vide Exs.P/4 & P/3. Spot map was prepared vide Ex.P/1. Inquest proceedings (Ex.P/3) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/8) proved by Dr. S.K. Bagh (PW-8) cause of death was due to asphyxia as a result of compression on neck and homicidal in nature. 4. After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 5. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 8 witnesses and exhibited 8 documents, whereas, the appellant in defence has neither examined any witness nor exhibited any document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the 4 CRA No. 1164 of 2019 appellant for the offence 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:- 7. Mr. Ashok Kumar Swarnkar, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. He would also submit that the prosecution has failed to bring home the offence as the theory of last seen together has not been established. He would further submit that the fact that the deceased was allegedly the second wife of the appellant is also not established, as such, the appeal deserves to be allowed and the appellant is entitled for acquittal on the basis of benefit of doubt. 8. On the other hand, Mr. Vivek Mishra, learned State counsel, would support the impugned judgment and submit that prosecution has been able to prove the offence beyond reasonable doubt. He would further submit that last seen has been found established and the subsequent conduct of the appellant is also a relevant fact to base the conviction of the appellant as he remained absconded for a 5 CRA No. 1164 of 2019 fairly long time, therefore, the trial Court has rightly convicted the appellant for the aforesaid offence. Thus, the instant appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely. Discussion & Analysis :- 10. 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/8) proved by Dr. S.K. Bagh (PW-8), 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. 11. Now, the question for consideration would be whether the appellant has assaulted the deceased? 12. The case of the prosecution is based on the circumstantial evidence and the trial Court has found incriminating 6 CRA No. 1164 of 2019 circumstances established. The five golden principles which constitute 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 1 in paragraph 153 which state 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 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 1 (1984) 4 SCC 116 2 (1973) 2 SCC 793 7 CRA No. 1164 of 2019 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. In the case at hand, the trial Court has proceeded to convict the appellant for the offence under Section 302 of the IPC on the basis of theory of last seen together of the appellant and the deceased in the tenanted accommodation of Rupa Bai (PW-2) by Shambha Bai (PW-1), neighbour of the appellant and the deceased, and Rupa Bai as well and also invoked Section 106 of the Indian Evidence Act, 1872 (for short “IEA”), as the appellant and the deceased, only two inmates, used to live in the house in question, therefore, the appellant is required to explain as to how and under what circumstances his second wife died, which he failed and further on the basis of subsequent conduct of the appellant as he remained absconded for a fairly long time after the incident. 14. Last seen together :- The appellant and the deceased Sushila Bai used to live in the tenanted accommodation of Rupa Bai (PW-2) and Shambha Bai (PW-1) was also residing in their adjoining accommodation of Rupa Bai (PW- 2). Shambha Bai (PW-1) in her statement before the Court has clearly stated that just before a day i.e. 21.06.2013, on 8 CRA No. 1164 of 2019 which the dead body of the deceased was found, in the evening, the appellant and the deceased after having their dinner they closed the door of their room and went to sleep and so she did. On the next day i.e. 22.06.2013, in the morning, at about 11:00 am, when the door of the room of appellant and deceased was found closed, she knocked the door, but they did not open the door so she pushed the door by which the door was opened and after opening the door of the room she and others saw the dead body of Sushila Bai lying on the bed. Further, Rupa Bai (PW-2) in her statement before the Court has clearly stated that the appellant and the deceased used to live together as husband and wife in the house in question. She has also stated that in the night of 21.06.2013 after having dinner the appellant had gone to sleep as usual and on the next day i.e. 22.06.2013, in the late morning, the door of the room of the appellant and the deceased was closed, so on suspicion, after opening the door she found Sushila Bai was lying dead on the bed and the appellant was not present in the room. In the cross examination, she (PW-2) has further stated that the appellant had entered into an agreement for rented accommodation in the house in question in which the dead body was found. They have been subjected to some extent of cross-examination, but 9 CRA No. 1164 of 2019 nothing has been extracted to hold that they have not seen the appellant and the deceased together lastly and the appellant was not present on the date and time of offence. Though, Fagnuram Bhoi (PW-7) in paragraph No.7 of his statement before the Court has stated that the appellant used to live with his first wife and daughter at village Beergaon, but thereafter he has also stated that the appellant was also used to stay with his second wife Sushila Bai (deceased). As such, from the statements of Shambha Bai (PW-1) and Rupa Bai (PW-2) theory of last seen is clearly established as they had seen the appellant in the night of 21.06.2013, along with his second wife Sushila Bai (deceased) in the house in question and on the next day i.e. 22.06.2013, in the morning, the dead body of the deceased was found. 15. Now, the question for consideration is whether the trial Court has rightly invoked Section 106 of the IEA to base the conviction of the appellant for offence under Section 302 of the IPC ? 16. At this stage, it would be appropriate to notice the relevant judgments with regard to Section 106 of the IEA. 10 CRA No. 1164 of 2019 17. In the matter of Anees v. The State Govt. of NCT3, 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 3 2024 SCC Online SC 757 11 CRA No. 1164 of 2019 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: 12 CRA No. 1164 of 2019 “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 13 CRA No. 1164 of 2019 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 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 14 CRA No. 1164 of 2019 circumstances of the case.” 18. Recently, in the matter of Manharan Rajwade v. State of Chhattisgarh 4 their Lordships of the Supreme Court on the point of Section 106 of the IEA have held in paragraph 7 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 no discharged the burden on it to prove that the appellant was last seen together with the deceased wife. Thus, Section 106 of the Evidence Act cannot be invoked to shift the burden on the appellant.” 19. In the foregoing paragraphs, we have already discussed and found proved the theory of last seen together. Coming to the facts of the present, in light of the principles of law laid down by their Lordships of the Supreme Court in the above stated judgments, it is quite vivid that the deceased was the second wife of the appellant and they used to live in the tenanted accommodation of Rupa Bai (PW-2). Further, as per the statements of Rupa Bai (PW-2) & Shambha Bai (PW-1) on 21.06.2013 they had seen the appellant in the night along with the deceased in the tenanted accommodation of Rupa Bai (PW-2) and on the 4 2024 INSC 560 15 CRA No. 1164 of 2019 next day i.e. 22.06.2013, in the morning, Sushila Bai was found dead, as such, the appellant was the only person who present along with the deceased on the date and time of offence, therefore, the appellant is required to explain as to how and under what circumstances his wife Sushila Bai died, which he failed to explain while recording his statement under Section 313 of the CrPC. As such, the trial Court has rightly invoked Section 106 of the IEA to base the conviction of the appellant for offence under Section 302 of the IPC. 20. Subsequent conduct of the appellant :- In this regard the trial Court has clearly recorded a finding in paragraph No. 20 of its judgment that from the date of offence i.e. 22.06.2013 the appellant absconded from the spot and he was arrested on 21.05.2018, which is a relevant fact under Section 8 of the IEA as the appellant remained absconded for a fairly long period i.e. 5 years. As such, the trial Court has rightly taken as one of incriminating circumstances to convict the appellant on the basis of his subsequent conduct. Conclusion:- 21. In view of the aforesaid discussion and analysis, we are of considered opinion that the prosecution has discharged its 16 CRA No. 1164 of 2019 primary burden of proving its case and also completed the chain of circumstances in light of decision of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra). Accordingly, the trial Court is absolutely justified in convicting the appellant for offence under Section 302 of the IPC by holding that the death is homicidal in nature, theory of last seen together has been established, subsequent conduct of the appellant absconding for a fairly long time is relevant fact under Section 8 of the IEA has also been found proved and Section 106 of the IEA is squarely attracted in the instant case. In that view of the matter, we do not find any merit in the instant appeal and appeal deserves to be and is accordingly, dismissed. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ankit