Page No.1 of 18 IN CRA-1222-2019 2025:CGHC:6814-DB NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 1222 of 20 19 [Arising out of judgment dated 29.07.2019, passed in Sessions Case No.118 of 2018 (State of Chhattisgarh v. Anandram Rathiya and another), by the 5th Additional Sessions Judge, Raigarh (C.G.)] 1. Anandram Rathiya, Son of Amruram Rathiya, aged about 60 years, Resident of Village Bhalunara, Police Station Kharsiya, District Raigarh (Chhattisgarh) 2. Sundermati, Wife of Makar Singh Rathiya, aged about 30 years, Resident of Village Bhalunara, Police Station Kharsiya, District Raigarh (Chhattigarh) ---- Appellants (In Jail) Versus State of Chhattisgarh, through District Magistrate, Raigarh, District Raigarh (Chhattisgarh) ---- Respondent --------------------------------------------------------------------------------------------- For Appellant : Mrs. Indira Tripathi, Advocate For Respondent : Mr. Pankaj Singh, Panel Lawyer -------------------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (06.02.2025) Sanjay K. Agrawal, J (1) This criminal appeal preferred by two appellants/accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 29.07.2019, SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.02.10 17:06:35 +0530 Page No.2 of 18 IN CRA-1222-2019 passed in Sessions Case No.118 of 2018 (State of Chhattisgarh v. Anandram Rathiya and another), by the 5th Additional Sessions Judge, Raigarh (C.G.), whereby they have been convicted and sentenced as under: Conviction Sentence U/s. 302 of IPC Imprisonment for life with fine of Rs.1,000/- each and, in default of payment of fine, additional rigorous imprisonment for 01 year each. U/s. 201/34 of IPC Rigorous imprisonment for 07 years with fine of Rs.1,000/- each and, in default of payment of fine, additional rigorous imprisonment for 01 year each. [Both the sentences are directed to run concurrently] (2) The case of the prosecution, in a nutshell, is that on 05.08.2018 at about 12:00 AM in the night, in the house of Makar Singh Rathiya, situated at Village Bhalunara, which comes within the ambit of Police Station Kharsiya, District Raigarh (CG), the two appellants herein alongwith one juvenile co-accused, namely, Yogendra Kumar firstly shared common intention with each other for killing Makar Singh Rathiya (herein after referred to as the “deceased”) and, in furtherance thereof, strangulated his neck by means of nylon rope and scarf, due to which, he died and, further, in order to screen themselves from the legal punishment of committing murder of the deceased, tried to hide nylon rope and scarf and, thereby, the appellants are said to have committed offence under Sections 302 & 201/34 of IPC. Page No.3 of 18 IN CRA-1222-2019 (3) It is further case of the prosecution that when information with regard to sudden and unnatural death was given to the police by Surutilal (PW-01), the same was registered under Section 174 of CrPC vide Ex.P/01 and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/03 and inquest proceedings were also conducted vide Ex.P/04. The dead-body of the deceased was sent for postmortem examination and in the postmortem report (Ex.P/16), conducted by Dr. Dr. Sajan Agrawal (PW-12), it has been opined that the cause of death of the deceased asphyxia due to strangulation. Site map was prepared vide Ex.P/14. The accused-appellants were arrested vide Ex.P/08 & Ex.P/09 respectively and their memorandum statements were recorded vide Ex.P/05 & Ex.P/06 respectively. Pursuant to the memorandum statement of the appellant No.02, polyester scarf (chuniri) and nylon rope, which were used in the commission of the offence, were seized vide Ex.P/07. However, the aforesaid seized wooden stick was not sent for chemical examination for the reasons best known to the prosecution. Further, opinion with regard to nature of death of the deceased was also obtained and, vide Ex.P/17, it has been opined by the doctor that nature of death of the deceased is homicidal in nature. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Page No.4 of 18 IN CRA-1222-2019 Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 12 witnesses and exhibited 23 documents, whereas the appellants/accused in support of their defence, have neither examined any witness nor exhibited any document. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellants for offences under Sections 302 & 201/34 of IPC and sentenced them as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence. (6) Mrs. Indira Tripathi, learned counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Sections 302 & 201/34 of IPC, as the prosecution has failed to prove the offences beyond reasonable doubt. She further submits that the learned trial Court has wrongly invoked Section 106 of the Indian Evidence Act, 1872 (for short the “Evidence Act”) for holding the appellants guilty of the offences in question, as neither they were the only inmates alongwith the deceased in the house at the time of Page No.5 of 18 IN CRA-1222-2019 commission of the offence nor the incident in question was within the special knowledge of the appellants herein. Further, the recovery of scarf and nylone rope vide Ex.P/07 pursuant to the memorandum statement of the appellant No.01 recorded vide Ex.P/06 is also of no help to the prosecution for the reason that same has not been sent for any chemical examination to ascertain whether stains of human blood were found on it or not. Even otherwise, the learned trial Court in Para-14 of the impugned judgment itself recorded that though the witness to memorandum and seizure has not supported the case of the prosecution, but on the basis of statement of Investigating Officer (IO), namely, S.K. Dubey (PW-10) has held the same to be proved, which is bad and illegal. Hence, in view of aforesaid illegalities and perversity in the impugned judgment, the present appeal deserves to be allowed and the appellants are liable to be acquitted of the said charge on the basis of benefit of doubt. (7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offences beyond reasonable doubt by leading evidence of clinching nature. In view of statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellants for offences under Sections 302 & 201/34 of IPC and, therefore, the present appeal deserves to be dismissed. Page No.6 of 18 IN CRA-1222-2019 (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/16), wherein it has been opined that cause of death of deceased is asphyxia due to strangulation, which is duly proved by the statement of Dr. Sajan Agrawal (PW-12). Accordingly, taking into consideration the postmortem report (Ex.P/16) and the statement of Dr. Sajan Agrawal (PW-12), who has conducted postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding. (10) Now, the next question would be whether the accused- appellants herein are the author of the crime or not, which the learned trial Court has recorded in affirmative by relying upon following incriminating circumstances as culled out in the impugned judgment, which reads as under: “1. Since the accused/appellants alongwith one julienne co-accused and the deceased were the only persons residing in house on the date and time of the offence and, the accused-appellants have failed to Page No.7 of 18 IN CRA-1222-2019 explained as to how and in what manner the deceased suffered injuries and died, therefore, invoked Section 106 of the Evidence Act. 2. Pursuant to the memorandum statement of the appellant No.02, polyester scarf (chuniri) and nylon rope were seized vide Ex.P/07.” (11) Since, the present case is based on above-stated circumstantial evidence, therefore, it is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra 1 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as under: “153.…. (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 & Anr. 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 1 (1984) 4 SCC 116 Page No.8 of 18 IN CRA-1222-2019 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.” (12) A careful perusal of the above-stated incriminating circumstances would show that the learned trial Court after holding the death of the deceased to be homicidal in nature, firstly relied upon the factum that since the two appellants herein alongwith one juvenile co-accused and the deceased were staying together in one house where the dead-body of the deceased was found and, the appellants herein have failed to explain as to who and in what circumstance the deceased suffered injuries and died, therefore, held the appellants guilty for the offence in question with the aid of Section 106 of the Evidence Act. Therefore, the question is as to whether the learned trial Court is justified in invoking Section 106 of the Evidence Act, for which, we will also consider whether the prosecution has been able to discharge its primary burden to proving its case beyond reasonable doubt. (13) At this stage, it would be appropriate to quote Section 106 of the Evidence Act, which states as under:- Page No.9 of 18 IN CRA-1222-2019 “106. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of prov- ing that fact is upon him.” (14) 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 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 per- sons were in such a position that they could have special knowledge of the fact concerned. (15) 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 Evidence Act, 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 2 2024 INSC 368 [Criminal Appeal No.437 of 2015, decided on 30.05.2024]CC Page No.10 of 18 IN CRA-1222-2019 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 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 Page No.11 of 18 IN CRA-1222-2019 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: “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 Page No.12 of 18 IN CRA-1222-2019 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 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) Page No.13 of 18 IN CRA-1222-2019 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.” (16) In the matter of Nagendra Sah v. State of Bihar 3 it has been held as under: “19. In this case, as mentioned above, neither the prosecution witnesses have deposed to that effect nor any other material has been placed on record to show that the relationship between the appellant and the deceased was strained in any manner. Moreover, the appellant was not the only person residing in the house where the incident took place 3 (2021) 10 SCC 725 Page No.14 of 18 IN CRA-1222-2019 and it is brought on record that the parents of the appellant were also present on the date of the incident in the house. The fact that other members of the family of the appellant were present shows that there could be another hypothesis which cannot be altogether excluded. Therefore, it can be said that the facts established do not rule out the existence of any other hypothesis. The facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant. *** *** *** *** 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.” (17) Recently, in the matter of Manharan Rajwade v. State of Chhattisgarh 4 , their Lordships of the Supreme Court on the point of invoking Section 106 of the Evidence Act have held in Para-7 of the pronouncement 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 4 2024 INSC 560 Page No.15 of 18 IN CRA-1222-2019 seen together with the deceased wife. Thus, Section 106 of the Evidence Act cannot be invoked to shift the burden on the appellant.” (18) Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the matters of Anees (supra), Nagendra Sah (supra) and Manharan Rajwade (supra), it is quite vivid that though the prosecution has been able to prove the death of the deceased to be homicidal in nature, but the prosecution has failed to established by adducing legal evidence that on the date and time of the offence the accused-appellants herein and the deceased were the only inmates in the house where the dead-body of the deceased was found or they were residing together in one house. As per the statement of Vijay Rathiya (PW-02), who is Sarpanch of the village, has stated before the Court in Para-16 that the three sons of the appellant No.01 used to reside separately, their houses and kitchen are also separately. Similarly, Heeralal Rathiya (PW-04), who is co- villager, has stated in Para-02 that the two sons of the appellant No.01, namely, Bhawani Lal (not examined) and Makar Singh (deceased) used to reside separately. Further, in Para-11 of his cross-examination also, he reiterated that deceased- Makar Singh, Bhawani (not examined) and appellant No.01- Anand Ram all used to reside separately, their houses and kitchens are also separate. The aforesaid fact of the appellants and the deceased residing separately in different houses is also apparent from the site map Page No.16 of 18 IN CRA-1222-2019 prepared by the prosecution vide Ex.P/14, which is duly proved by IO- S.K. Dubey (PW-10), wherein it is clearly mentioned that Spot-A is the place where the dead-body of the deceased was recovered, whereas Spot-B, Spot-C & Spot-D are the rooms/houses of Bhawani (not examined), appellant No.1- Anandram and juvenile co-accused- Yogendra respectively, which are at the distance of 18 ft., 36 ft. & 54 ft. from Spot-A respectively. As such, in light of the above evidence available on record, it is clear like noon day that the prosecution has failed to prove that at the time of commission of the offence the appellants and the deceased were residing together in one house or they were the only inmates in the house where the dead-body of the deceased was found. Therefore, the provision contained in Section 106 of the Evidence Act would not apply in the present case, as the prosecution has not been able to discharge its primary burden of proving its case beyond reasonable doubt. Accordingly, the learned trial Court is absolutely unjustified in applying Section 106 of the Evidence Act to convict the appellant herein. We hereby hold accordingly. (19) The next piece of incriminating circumstance which the learned trial Court has found proved is the recovery of polyester scarf and nylon rope vide Ex.P/07 pursuant to the memorandum statement of the appellant No.02 recorded vide Ex.P/06. However, in this regard the learned trial Court has itself recorded a finding in Para-14 of the impugned judgment that the recovery and Page No.17 of 18 IN CRA-1222-2019 memorandum witness have not supported the case of the prosecution, but still on the basis of the statement of IO- S.K. Dubey (PW-10) has proceeded to hold the same to be found proved. Even otherwise, the said polyester scarf and nylon rope were not not subjected to any chemical examination to ascertain whether stains of human blood were found on it or not for the reasons best known to the prosecution, therefore, in absence of any evidence to show that stains of human blood were found on the said said polyester scarf and nylon rope, such a recovery is of no help to the prosecution, more particularly when, it is not the case of the prosecution that said polyester scarf and nylon rope are of such a unique design or quality or workmanship, which belongs to only and only to the appellant No.02 or to the deceased or the same is not easily available in the market (See: Digamber Vaishnav and another v. State of Chhattisgarh 5 [Para-37]). We hereby hold accordingly. (20) In view of foregoing analysis, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence, as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court is unjustified in convicting the appellants for offence under Sections 302 & 201/34 of IPC being the authors of 5 (2019) 4 SCC 522 Page No.18 of 18 IN CRA-1222-2019 the crime in question in light of above-mentioned incriminating circumstances and same is liable to be set aside. (21) Accordingly, the conviction and sentence of the appellants for offence punishable under Sections 302 & 201/34 of IPC, as imposed upon them by the learned trial Court, are hereby set aside. They are acquitted of the said charges on the basis of benefit of doubt. Since the appellants are in jail, we direct that they be released from jail forthwith, if not required in any other matter/case. (22) This criminal appeal is allowed. (23) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellants are languishing for necessary information and action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge s@if