1 2025:CGHC:10465-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2005 of 2019 Santosh Singh S/o Late Bhajan Ram Aged About 37 Years R/o Ramnagar Dhourapara, Police Station - Bishrampur, District - Surajpur, Presently Residing At Pandavpara, Viratnagar, Qtr. No. 755, Police Station Patna, District - Koriya Chhattisgarh ... Appellant versus State Of Chhattisgarh Through - Station House Officer, Police Station Patna, District - Koriya Chhattisgarh. ... Respondent/State For Appellant : Mr. Praveen Dhurandhar, Advocate For Respondent : Mr. Arvind Dubey, Govt. Advocate & Mr. H. A. P. S. Bhatia, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (04.03.2025) Digitally signed by BHOLA NATH KHATAI Date: 2025.03.10 10:39:07 +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 26.11.2019, passed by learned Additional Sessions Judge, Baikunthpur, District Koriya, Chhattisgarh, in Sessions Trial No.60/2019, by which, the appellant herein has been convicted for offence punishable under Sections 302 & 201 of Indian Penal Code and sentenced as under: Conviction Sentence u/s 302 of the IPC Life imprisonment and fine of Rs.1,000/-, in default of payment of fine, 1 month additional R.I. u/s 201 of the IPC Rigorous imprisonment for 1 year and fine of Rs.100/-, in default of payment of fine, 7 days additional R.I. 2. The case of prosecution, in short, is that in the intervening night of 21/22.04.2019, the appellant herein assaulted his second wife Sonmat @ Anju Singh (now deceased) by cricket bat, as a result of which, she suffered grievous injuries and died. It is alleged that in order to screen himself from the offence, the appellant along with his first wife Shanti Singh (acquitted co-accused) buried the dead body in the sand of Bhavanadand dry Nala of village Khond; thereby the offence has been committed. Pursuant to the information given by Sumar Sai (PW-4) to Patna Police Station that a dead body of unknown woman is buried in the sand of Bhawanadand Nala, Merg Intimation (Ex. P-13) was recorded and information was given to the higher 3 Officer. The dead body was exhumed vide Ex.P-2 in the presence of the witnesses and Identification Panchnama of the dead body was conducted vide Ex. P-3. Spot Map was prepared vide Ex.P-10 and FIR was registered vide Ex. P- 20. Inquest was conducted vide Ex.P-5 and the dead body of deceased was subjected to postmortem, which was conducted by Dr. Shresth Mishra (PW-9), who has proved the post-mortem report (Ex. P-18), according to which, cause of death was cardio pulmonary arrest due to hypovolemic shock, mode of death was excessive internal haemorrhage due to ruptured spleen, right kidney & adrenal gland and nature of death was homicidal. Pursuant to memorandum statement of the appellant (Ex.P/11), the weapon of offence i.e. cricket bat was seized vide Ex. P-12 which was sent for chemical examination to FSL along with other seized articles. As per FSL report (Ex. P-28), human blood was found on the said bat. After completion of investigation, appellant herein was charge - sheeted for the aforesaid offence and acquitted co-accused Shanti Singh for offence under Section 201/34 of IPC and the case was committed to the Court of Sessions for trial in accordance with law. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 10 witnesses and exhibited 28 documents in support of its case. The statements of accused persons were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, the accused persons in 4 support of their defence have neither examined any witness nor exhibited any document. 4. Learned trial Court, on appreciation of the oral and documentary evidence available on record, convicted and sentenced the appellant herein as mentioned in the opening para of this judgment against which the present appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence. However, the trial Court, vide the impugned judgment, has acquitted co- accused Shanti Singh, of the charges levelled against her. 5. Mr. Praveen Dhurandhar, learned counsel for appellant, would submit that there is no eye witness to the incident and the appellant has been convicted solely on the basis of weak circumstantial evidence. He would submit that Section 106 of the Evidence Act would not be applicable in the present case for conviction of the appellant under Section 302 of IPC as it is not established that the deceased and the appellant were residing together on the date and time of occurrence. He would submit that the confessional statement made by acquitted co-accused Shanti Singh before her father Kewla Singh (PW-2) is a very weak piece of evidence and unless it is corroborated by other circumstantial evidence it cannot be made basis of conviction. He would further submit that though human blood has been found on the cricket bat but the prosecution has not been able to prove that the said bat was used in commission of the offence. As such, the prosecution has failed to prove its case beyond reasonable doubt and therefore, the appellant is entitled for acquittal on the basis of benefit of doubt. 5 6. On the other hand, Mr. Arvind Dubey and Mr. H. A. P. S. Bhatia, learned State counsel, would support the impugned judgment and 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 punishable under Sections 302 & 201 of I.P.C. 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. In the instant case, there is no direct evidence available on record and the case of prosecution 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 Maharashtra1 which must be fulfilled for convicting an accused on the basis of circumstantial evidence. The relevant paragraph 153 of the said judgment reads 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 1. (1984) 4 SCC 116 6 '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 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.” 2. (1973) 2 SCC 793 7 9. The trial Court has found the following incriminating circumstances to be proved to convict the appellant for the aforesaid offence : i) The death of deceased Sonmat was homicidal in nature. ii) The appellant and the deceased were living together on the date and time of offence and in the absence of explanation regarding her death on the part of the appellant, Section 106 of the Evidence Act would be invocable to convict the appellant under Section 302 of IPC. iii) Acquitted co-accused Shanti Shingh has made confessional statement before her father Kewla Singh (PW-2) that the appellant caused the murder. iv) The appellant did not report the matter to the Police for about 4-5 days. v) As per FSL report Ex.P-28, human blood was found on the cricket bat seized from the appellant pursuant to his memorandum statement Ex. P-11. 10. Now, we will consider the incriminating circumstances which have been found to be proved by the trial Court in the light of the principles of law laid down by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda (supra). 11. The first and foremost circumstance for consideration is as to whether the death of deceased Sonmat was homicidal in nature? 8 12. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex. P-16 proved by Dr. Shresth Mishra (PW-9), according to which, cause of death was cardio pulmonary arrest due to hypovolemic shock, mode of death was excessive internal haemorrhage due to ruptured spleen, right kidney & adrenal gland and nature of death was homicidal, which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. Second Circumstance 13. The trial Court has invoked Section 106 of the Evidence Act holding that the appellant and deceased were living together. But, it is well settled that the initial burden is upon the prosecution to first prima facie establish the guilt of the accused and then only the burden shifts upon the accused to explain the circumstances as contemplated by Section 106 of the Evidence Act. 14. In this regard, the Hon’ble Supreme Court, in the matter of Anees v. The State Govt. of NCT3, has elaborately considered the principles of law governing the applicability of Section 106 of the Evidence Act and has 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. 3. 2024 INSC 368 [Criminal Appeal No.437 of 2015, decided on 30.05.2024]CC 9 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 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 10 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] 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 11 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 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 12 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) 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. 13 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. The principle of law laid down in the case of Anees (supra) has been followed recently by the Supreme Court in the case of Ravi v. State of Punjab4. 16. In light of the principles of law laid down by their Lordships of the Supreme Court in the above judgments, it is quite vivid that Section 106 of the Evidence Act would be invoked only where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the guilt of the accused and not otherwise. 4 2025 SCC OnLine SC 279 14 17. In this case there is no evidence that the appellant and the deceased were living together on the date and time of offence or they were last seen together. Deepak Kumar (PW-5) has only stated that on 22.04.2019, the appellant came to his house and informed that he had caught his second wife Sonam @ Anju Singh (deceased) talking to someone else on the mobile and there was a quarrel with her in this regard and since then she is missing. But this witness did not say that on the date and time offence, he had seen the appellant and the deceased together in the house. As such, except the fact that the death was homicidal in nature, there is no evidence that the appellant and the deceased were living together or last seen together on the date and time of offence. Hence, this incriminating circumstance is not established by the prosecution. Third Circumstance 18. The trial Court in para-31 of its judgment has relied upon the confessional statement made by acquitted co-accused Shanti Singh before her father Kewla Singh (PW-2) for convicting the appellant. 19. In this regard, in the case of Haricharan Kurmi v. State of Bihar5 their Lordships clearly held that though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act and observed as under: “11. …..The basis on which this provision is found is that if a person makes a confession implicating himself, that may suggest that 5 AIR 1964 SC 1184 15 the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to 'a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untrue, and so, s. 30 provides that such a confession may be taken into consideration even against a co-accused who is being tried along with the maker of the confession. There is no doubt that a confession made voluntarily by an accused person can be used against the maker of the confession, though as a matter of prudence criminal courts generally require some corroboration to the said confession Particularly if it has been retracted. With that aspect of the problem. however, we are not concerned in the present appeals. When S. 30 provides that the confession of a co- accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration, is precisely the problem which has been raised in the present appeals. It is clear that the confession mentioned in S. 30 is not evidence under S. 3 of the Act. 12. …..It would be noticed that as a result of the provisions contained in s. 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S. 30, the fact remains that it is not evidence as defined by S. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect 16 of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in S. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh, 1952 SCR 526: (AIR 1952 SC 159) where the decision of the Privy Council in Bhuboni Sahu's case, 76 Ind App 147 (AIR 1949 PC 257) has been cited with approval. 16. …..As we have already indicated, it, has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to' accept other evidence and feels the necessity of seeking for an assurance in support of its con- clusion deducible, from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals.” 20. In the light of the aforesaid judgment of the Hon’ble Supreme Court in the case of Haricharan Kurmi (supra), it is quite vivid that the confessional statement is a very weak piece of evidence and unless other circumstantial evidence or ocular evidence is clearly available, conviction cannot be 17 rested only on the confessional statement of co-accused as it requires corroboration from other evidence but in present case there is no such corroborating piece of evidence in this regard available on record. Fourth Circumstance 21. The fourth circumstance is that the appellant did not lodge the report to the Police for about 3-4 days. 22. Now the question would be whether on the basis of subsequent conduct of accused, which is relevant under Section 8 of the Evidence Act, appellant can be convicted for the offence under Section 302 of I.P.C. 23. In the matter of Subramanya v. State of Karnataka6, the Supreme Court has clearly held that subsequent conduct of the accused may be relevant fact under Section 8 of the Evidence Act, but it cannot form basis for conviction that too for offence of murder and observed in para 95 as under : “95. In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.” 6 2022 SCC OnLine SC 1400 18 Fifth Circumstance 24. The fifth/last circumstance is that pursuant to the memorandum statement of the appellant, the alleged weapon of offence i.e. cricket bat was seized vide Ex. P-12 and as per FSL report Ex. P-28, human blood was found on the said bat. Though, on the cricket bat human blood was found but it could not be established that the said bat was used by the appellant in commission of the offence. Even otherwise, as per the principle of law laid down in the case of Mustkeem alias Sirajudeen v. State of Rajasthan7, which has been followed in the matter Raja Naykar v. State of Chhattisgarh8, the finding of human blood stain on the seized article is one of the circumstances, on the basis of which, the accused cannot be convicted for offence under Section 302 of IPC. 25. In that view of the matter, we find that as per the principle of ‘Panchsheel’ laid down by the Honorable Supreme Court in the case of Sharad Birhichand Sarda (Supra), the chain of circumstances are not so complete in which the appellant can be held guilty for the said offence. The prosecution has failed to produce evidence to prove the guilt of the appellant beyond the shadow of doubt on the basis of the circumstantial evidence. Consequently, we are unable to uphold the conviction of the appellant for offence punishable under Sections 302 and 201 of the IPC and the appellant is entitled for acquittal on the basis of the principle of benefit of doubt. 7 (2011) 11 SCC 724 8 (2024) SCC Online SC 67 19 26. Accordingly, the impugned judgment dated 26.11.2019 passed by the Trial Court convicting and sentencing the appellant for the offence under Sections 302 & 201 of IPC, is hereby set aside/quashed on the basis of benefit of doubt and the appellant is acquitted of the said charges. Appellant is reported to be in jail. He be released from jail forthwith, if his detention is not required in connection with any other offence. 27. This criminal appeal, accordingly, stands allowed. 28. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned trial Court 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) (Sanjay Kumar Jaiswal) Judge Judge Khatai