(Cr.A.No.1995/2019) 2025:CGHC:3897-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1995 of 2019 (Arising out of judgment dated 31-10-2019 passed by the 1st Additional Sessions Judge, Surajpur in Sessions Trial No.31/2019) Kishun Singh, S/o Subaran Ram, Aged about 35 years, R/o Village Kot (Bairpara), Police Station Surajpur, District Surajpur, Chhattisgarh. (In Jail) ... Appellant versus State of Chhattisgarh, Through Station House Officer, Police Station Surajpur, District Surajpur, Chhattisgarh. ... Respondent For Appellant : Mr. Anil Gulati, Advocate. For Respondent : Mr. H.A.P.S. Bhatia, Panel Lawyer. Division Bench: - Hon’ble Shri Sanjay K. Agrawal and Hon’ble Shri Sanjay Kumar Jaiswal, JJ. Judgment on Board (22/01/2025) Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction recorded and sentence awarded by the learned 1st Additional Sessions Judge, Surajpur, by which the sole appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2025.01.23 11:56:02 +0530 (Cr.A.No.1995/2019) imprisonment for life and further sentenced to pay a fine of 2,000/-, in ₹ default, to further undergo additional simple imprisonment for six months. 2. Case of the prosecution, in short, is that in the intervening night of 4-5- 2019 and 5-5-2019, the appellant assaulted his wife Sukhmaniya by hands & fists and wooden log and thereafter, strangulated her to death and thereby committed the offence. Merg intimation Ex.P-1 was lodged by Dilbhajan (PW-1) – brother of the deceased, on the basis of which, FIR was registered against the appellant vide Ex.P-14. Inquest Ex.P-2 was conducted, crime details form Ex.P-13 was prepared and spot map Ex.P-9 was prepared by the Patwari. Postmortem was conducted by Dr. Rajesh Kumar (PW-10) vide Ex.P-10A and cause of death was stated to be asphyxia due to throttling with liver injury and nature of death was homicidal. The accused was arrested vide Ex.P-17 and his memorandum statement was recorded vide Ex.P-3 pursuant to which one wooden stick has been seized from his possession vide Ex.P-4. 3. Statements of the witnesses were recorded under Section 161 of the CrPC. After usual investigation, the accused / appellant was charge- sheeted for offence under Section 302 of the IPC and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions, Surajpur from where the learned 1st Additional Sessions Judge, Surajpur, received the case on transfer for trial. 4. The accused / appellant abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as (Cr.A.No.1995/2019) thirteen witnesses and exhibited 18 documents. The defence has examined none and no document has been exhibited. 5. The trial Court upon appreciation of oral and documentary evidence on record and considering the homicidal nature of death of the deceased and also considering that it is the appellant who has caused the murder of his wife, proceeded to convict and sentence him under Section 302 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred. 6. Mr. Anil Gulati, learned counsel appearing for the appellant, would submit that applying Section 106 of the Indian Evidence Act, 1872, the appellant has been convicted, whereas it has not been proved that the appellant and the deceased were seen together lastly on the date and time of offence and Deocharan (PW-4) & Ku. Deepa (PW-6) – son & daughter of the appellant & the deceased, respectively, did not say that the appellant was there in the house where their mother was found murdered, therefore, the appellant is entitled for acquittal. 7. Mr. H.A.P.S. Bhatia, learned Panel Lawyer appearing for the State / respondent, would support the impugned judgment and would submit that death of the deceased was homicidal in nature and it is the appellant who has caused the death of his wife Sukhmaniya. He would further submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt. As such, with the aid of (Cr.A.No.1995/2019) Section 106 of the Evidence Act, the appellant has rightly been convicted under Section 302 of the IPC. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the trial Court with utmost circumspection and carefully as well. 9. The question whether the death of the deceased was homicidal in nature has rightly been answered by the trial Court in affirmative relying upon the statement of the medical officer Dr. Rajesh Kumar (PW-10), who has proved the postmortem report Ex.P-10A, which is a pure and simple finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 10.The question is, whether the trial Court has rightly invoked Section 106 of the Evidence Act? 11. Case of the prosecution is not based on direct evidence, it is based on circumstantial evidence and the trial Court has proceeded to convict the appellant applying Section 106 of the Evidence Act relying upon the statements of Deocharan (PW-4) & Ku. Deepa (PW-6) – son & daughter of the appellant & the deceased, respectively, that the appellant & the deceased were the only two inmates in the house of the appellant where the dead body of the deceased was found. It is a case of house murder and in absence of explanation from the appellant, the trial Court has (Cr.A.No.1995/2019) proceeded to convict the appellant for offence under Section 302 of the IPC. 12. In the matter of Balvir Singh v. State of Uttarakhand1, their Lordships of the Supreme Court, reviewing their earlier decision on the point of Section 106 of the Evidence Act, have held that Section 106 has to be applied in criminal cases with care and caution, and observed 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 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 1 2023 SCC OnLine SC 1261 (Cr.A.No.1995/2019) 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 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 (Cr.A.No.1995/2019) 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 Indian 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 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 (Cr.A.No.1995/2019) 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.” 13. Recently, 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 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. 2 2024 SCC OnLine SC 757 (Cr.A.No.1995/2019) 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 SC 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 (Cr.A.No.1995/2019) the decision of this Court in Mir Mohammad (supra), 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 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 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 (Cr.A.No.1995/2019) 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 circumstances of the case.” 14. Reverting to the facts of the present case, though it has been proved that the death of the deceased was homicidal in nature, the trial Court has relied upon the statements of Deocharan (PW-4) & Ku. Deepa (PW-6) – son & daughter of the appellant & the deceased, respectively. Deocharan (PW-4) in his statement before the Court has stated that on the date of (Cr.A.No.1995/2019) offence, he along with his sister Deepa had gone to participate in the marriage ceremony of one of his villagers namely, Sukhnandan, his mother had already gone to the said marriage place, but his mother & father did not stay there. However, in paragraph 11, he has stated that on the fateful day, his mother had also consumed liquor in the marriage ceremony, but his statement is totally silent as to whether the appellant was also there in the house where her mother was found dead. As such, the statement of Deocharan (PW-4) is of no use to the prosecution. 15. The next witness upon whom the trial Court has relied upon is Ku. Deepa (PW-6). She states that her mother Sukhmaniya (deceased) had also gone along with them to the said marriage place, but she had come back to her house, however, this witness did not speak whether her father was there in the house or not. In the examination-in-chief, she has stated that on the date of offence, her father had gone to Raigarh for work. However, in cross-examination paragraph 10, she has stated that prior to one week of the date of incident, her father had gone to Raigarh for work. 16. As such, it has not been established by the prosecution that on the date of offence, the appellant and the deceased were the only two inmates and it is a case of house murder and thus, in absence of explanation, the appellant should not have been convicted. In that view of the matter, the prosecution has failed to establish that on the date and time of offence, the appellant was present in the house and therefore he is entitled for acquittal on the basis of benefit of doubt. Page 13 of 13 (Cr.A.No.1995/2019) 17. For the foregoing reasons, conviction and sentences imposed upon the appellant under Section 302 of the IPC are liable to be set aside and they are hereby set aside and he is acquitted of the said charge. He is in jail. He be released forthwith, if not required in any other case. 18. The criminal appeal stands allowed. 19. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for necessary information and action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) JUDGE JUDGE Soma