1 2025:CGHC:15-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1687 of 2019 {Arising out of judgment dated 22.12.2017 passed in Sessions Trial No.53/2017 by the learned Fourth Additional Sessions Judge, Raipur} Ishwar Kansari, S/o. Shri Mannulal Kansari, Aged About 21 Years, R/o. Village Ghatodiya Para Nawapara, Police Station Gobra Nawapara, District Raipur, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through Gobra Nawapara, District Raipur, Chhattisgarh. ... Respondent(s) (Cause Title taken from Case Information System) For Appellant : Mr. Manoj Kumar Mishra, Advocate For 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 (02.01.2025) ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.01.06 17:54:14 +0530 2 Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 22.12.2017, passed by the learned Fourth Additional Sessions Judge, Raipur, in Sessions Trial No.53/2017, by which, the sole appellant has been convicted for offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.1000/-, in default of payment of fine amount, 6 months additional rigorous imprisonment. 2. Case of the prosecution, in short, is that in the intervening night of 21.10.2016 to 22.10.2016, at village Ghatodiyapara, Nawapara, Police Station- Gobra Nawapara, District Raipur, the appellant herein caused murder of his mother Jhalin Bai by causing burn injury and thereby, committed the aforesaid offence. The FIR was lodged by father of appellant Mannu Lal Kansari (PW-1) vide Ex.P-16, Merg Intimation was recorded vide Ex.P-1, Inquest was conducted vide Ex. P-3 and dead body of deceased Jhalin Bai was subjected to post-mortem, which was conducted by Dr. C.B.Gupta (PW- 11), who proved the post-mortem report vide Ex.P-17, according to which, cause of death was stated to be extensive 100% burn and lacerated wound on back of skull 3 and death was homicidal in nature. After due investigation, the appellant was charge-sheeted for the aforesaid offence to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 14 witnesses and exhibited 27 documents and the appellant-accused in support of his defence has not examined any witness but has exhibited the documents Ex.D-1. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of I.P.C. and sentenced him to undergo life imprisonment, against which the present appeal has been preferred. 5. Mr. Manoj Kumar Mishra, learned counsel for the appellant would submit that the conviction is based on Section 106 of the Indian Evidence Act, but the prosecution could not establish beyond reasonable doubt that the appellant and his mother (deceased) both were staying in the house in question on the date and time of offence, which has clearly 4 been contradicted by the FIR (Ex.P-16), Merg (Ex.P-1) & Inquest (Ex.P-3) and, as such, the appellant is entitled for acquittal on the basis of benefit of doubt. 6. Mr. H.A.P.S.Bhatia, learned State counsel would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence under Section 302 of I.P.C. and, as such, the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first question for consideration as to whether the death of deceased Jhalin Bai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-17), proved by Dr. C.B.Gupta (PW-11), according to which, cause of death was stated to be extensive 100% burn and lacerated wound on back of skull and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 5 9. The case of the prosecution is not based on direct evidence, it is 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 Maharashtra 1 , which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 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 1 (1984) 4 SCC 116 2 (1973) 2 SCC 793 6 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.” 10. The trial Court in paragraph 23 of the impugned judgment has recorded the following four incriminating circumstances to base the conviction, which states as under : " izFke ifjfLFkfr %& vfHk;qDr dks u’ks dk vkfn gksuk crk;k x;k gS vkSj u’ks dh gkyr esa vius ekrk&firk ls >xM+k ekjihV fd;k x;k vfHkys[k ij ls LFkkfir gSA ?kVuk fnukad dks Hkh vkjksih ,ao mlds firk ds e/; ekjihV gq;hA ftlds Ik’pkr mldk firk ?kj ls pyk x;k vkSj vkjksih rFkk mldh eka ?kj esa vdsys jg x;sA f}rh; ifjfLFkfr %& vkjksih vkSj e`frdk dks ?kj esa vdsys ’ks"k jgus ds Ik’pkr ?kVuk dh vxyh lqcg vkjksih dks jksrk ns[kdj vkl&iMksl ds yksx ,ao e`frdk ds fj’rsnkjksa ds vkus ij mUgkasus 7 e`frdk dks tys gq;s iM+s gq, ns[kk vkSj mls e`r voLFkk esa gksuk ik;kA r`rh; ifjfLFkfr %& fpfdRld }kjk fn;k x;k vfHker gS fd >kfyu ckbZ dh e`R;q tyus ds ifj.kkeLo:i gqbZ gS] tcfd ?kj esa fdlh vU; O;fDr dh mifLFkfr dk dksbZ lk{; ugh gSA prqFkZ ifjfLFkfr %& e`frdk ds }kjk vkRegR;k fd;k tkuk ;k fdlh vU; O;fDr ds }kjk mls tyk;s tkus ds laca/k esa vU; dksbZ ifjfLFkfr;ka ugha gSA ?kVuk ds iwoZ vfHk;qDr dk vkpj.k u’ks ds nkSjku vius ekrk&firk ls ekjihV fd;k tkuk vfHkys[kks ls nf’kZr gSA” 11. So far as the incriminating circumstances No.3 & 4 are concerned, we have already held that the trial Court has rightly held that death of deceased was on account of burn injury and, as such, it need not be deliberated again, as it has already been answered. 12. So far as the incriminating circumstance No.2 that the appellant was found crying near his house is concerned, it is quite natural that the appellant on having informed that he has lost his mother, he was crying and that is nothing unusual, which can be said to be incriminating circumstance. 13. Now the first incriminating circumstance on which the conviction is mainly based that the trial Court has invoked Section 106 of Indian Evidence Act, as the appellant has committed marpeet with his father Mannu Lal Kansari 8 (PW-1) and thereafter, in the morning, his father (PW-1) has left for another village to stay with his son-in-law and then the appellant and his mother (deceased) both were staying together in the house in question. 14. At this stage, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Anees v. The State Govt. of NCT3 and 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 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 3. 2024 INSC 368 [Criminal Appeal No.437 of 2015, decided on 30.05.2024] 9 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 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 10 (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 offer any explanation which might 11 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 12 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.” 15. Reverting to the facts of the case, in light of principles of law laid down by their Lordships of the Supreme Court in 13 above-stated judgment, the question for consideration would be, whether the appellant and deceased both were staying in the house in question on the date and time of offence. In this regard, it would be appropriate to refer to the document (Ex.P-1), which is merg intimation under Section 174 of Cr.P.C., lodged by the father of the appellant immediately after the incident at 6:30 A.M. on 22.10.2016. In the said document (Ex.P-1), it has been clearly stated that on 21.10.2016 at 7:00 A.M., Mannu Lal Kansari (PW-1), father of the appellant, had gone to Gariyaband for selling clothes and his wife (deceased) was in the house and on the next day i.e. on 22.10.2016 when he came back in the early morning, the door of his house was bolted inside and his wife (deceased) did not open the door and then he called his son-in-law Sanju Kumar Kansari (PW-2) and thereafter they opened the door of the house. Similar statement has been made by Mannu Lal Kansari (PW-1) in the FIR (Ex.P-16) lodged by him and in the inquest report (Ex.P-3) also the same finding has been recorded. As such, it has not been established from these three documents that on the date and time of offence, appellant and his mother were two inmates in the house in question. Thus, from all the aforesaid three documents, it is only established that on the date and time of offence, the 14 deceased was alone in the house and the presence of the appellant has not been stated by Mannu Lal Kansari (PW-1), father of the appellant, who had immediately lodged the merg intimation (Ex.P-1) followed by FIR (Ex.P-16) and also the inquest report (Ex.P-3) which has been recorded in presence of panch-witnesses. As such, presence of appellant in the subject house on the date and time of offence is not established at all. 16. Similarly, Mannu Lal Kansari (PW-1) in his statement has stated that on 21.10.2016 at 7:00 A.M., he had gone to Gariyaband for selling clothes and in the evening when he came back, he scolded his son i.e. appellant as to why he is not engaged in any work, on account of which, the appellant had committed maar-peet with his father (PW-1) and for that reason, the deceased (wife of PW-1) said to her husband to go to the house of their son-in-law (PW-2) and then he (PW-1) left for the house of PW-2. However, in the entire statement, Mannu Lal Kansari (PW-1) did not say that on the date and time of offence i.e. in the intervening night of 21.10.2016 and 22.10.2016, the appellant was present in the house along-with the deceased. In para 8 of his statement, Mannu Lal Kansari (PW-1) has clearly admitted that as per the merg intimation (Ex.P-1) the door was opened by Sanju Kansari (PW-2) and he has also 15 stated that while lodging merg intimation (Ex.P-1), he did not tell that the appellant was crying siting outside the house. Even in the statement recorded under Section 313 of Cr.P.C. no question has been asked from the appellant seeking explanation that on the date and time of offence, the appellant was in the house along-with the deceased. As such, the prosecution has not been able to establish its case beyond reasonable doubt so as to invoke Section 106 of the Indian Evidence Act that on the date and time of offence, the appellant was present along-with the deceased in the house in question and none else was present there. As such, though the prosecution has been able to establish the fact that death of the deceased was homicidal in nature, but it could not be established that the appellant is the author of the crime and in that view of the matter, the appellant is entitled for acquittal on the basis of benefit of doubt. 17. In view of the above discussion, we are unable to maintain the conviction of the appellant for offence under Section 302 of I.P.C. and accordingly, the impugned judgment of conviction and order of sentence dated 22.12.2017 is hereby set aside and the appellant stands acquitted of the offence under Section 302 of I.P.C. extending him the benefit of doubt. The appellant is stated to be in jail since 16 25.10.2016. He is directed to be released forthwith from jail, unless his detention is required in connection with any other offence. 18. In the result, the appeal is allowed. 19. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge Ashok