Page No.1 of 14 IN CRA-1420-2017 2025:CGHC:19608-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1420 of 2017 [Arising out of judgment dated 28.07.2017, passed in Sessions Case No.165 of 2015 (State of Chhattisgarh v. Arvind Singh) by the Sessions Judge, South Bastar, Dantewada (CG)] Arvind Singh, S/o R.V. Singh, aged about 33 years, R/o Ward No.4, Dharampura Comp, Kirandul, Police Station Kirandul, District- Dantewada (Chhattisgarh) ... Appellant (On Bail) Versus State of Chhattisgarh, through Police Station Kirandul, District Dantewada (Chhattisgarh) ... Respondent [Cause-title taken from Case Information System (CIS)] ------------------------------------------------------------------------------------------- For Appellant : Mr. P.R. Patankar and Mr. Mayank Mulchandani, Advocates For Respondent : Mr. Sharad Mishra, Panel Lawyer --------------------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (30.04.2025) Sanjay K. Agrawal, J (1) This criminal appeal preferred by the accused-appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 28.07.2017, passed in Sessions Case No.165 of 2015 (State of Chhattisgarh v. Arvind Singh) by the Sessions Judge, South Bastar, Dantewada (CG), SAIFAN KHAN Digitally signed by SAIFAN KHAN Page No.2 of 14 IN CRA-1420-2017 whereby he has been convicted for offences: under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.1,000/- and, in default of payment of fine amount, additional rigorous imprisonment for 03 months and also under Section 201 of IPC and sentenced to undergo rigorous imprisonment for 03 years with fine of Rs.500/- and, in default of payment of fine amount, additional rigorous imprisonment for 01 month. (2) The case of the prosecution, in a nutshell, is that on 21.05.2015, between 01:00 AM to 02:00 AM, in the house of the appellant, situated at Ward No.4, Dharampura Comp, which comes within the ambit of Police Station Kirandul, District- Dantewada (CG), the accused-appellant herein firstly committed murder of his wife- Usha Singh (hereinafter referred to as the “deceased”) and, thereafter, in order to screen himself from the legal punishment, burned the dead-body of the deceased and, thereby, said to have committed offences under Section 302 & 201 of IPC. (3) It is further case of the prosecution that when the matter was reported to the police, merg intimation (Ex.P/19) and FIR (Ex.P/18) were registered and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/01 and inquest proceedings were conducted vide Ex.P/02. Nazari Naksha and Panchnama were also prepared vide Ex.P/24 & Ex.P/08 respectively. The dead-body of deceased was sent for postmortem examination and in the postmortem report (Ex.P/13), Page No.3 of 14 IN CRA-1420-2017 conducted by Dr. Madhuri Shandilya (PW-11), it was opined that the cause of death of deceased is cardiorespiratory failure due to shock and asphyxia, due to smothering and nature of death is homicidal. The accused-appellant was arrested vide Ex.P/21. Certain articles were seized from the spot vide Ex.P/03 & Ex.P/04. However, the same were not subjected to chemical examination for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the competent criminal court having jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured her guilt and entered into defence by stating that she is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 16 witnesses and exhibited 25 documents, whereas the appellant-accused, in support of his defence, though examined 01 witness, but not exhibited document. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence under Sections 302 & 201 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. Page No.4 of 14 IN CRA-1420-2017 (6) Mr. P.R. Patankar and Mr. Mayank Mulchandani, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Sections 302 & 201 of IPC, as the prosecution has failed to prove the offences beyond reasonable doubt. They further submits that though the learned trial Court has rightly rejected the aspect of alleged extra-judicial confession given by the appellant, but wrongly invoked Section 106 of the Indian Evidence Act, 1872 (for short the “IE Act”) to base the conviction of the appellant for the reason that as per the finding of the learned trial Court in Para-33 of the impugned judgment itself, appellant’s mother (not examined) and his sister, namely, Anil Kumari (PW-12) were also present in the house at the time of incident and, as such, the prosecution has failed to establish that the appellant and the deceased were the only inmates in the house at the time of commission of the offence. Therefore, the same is liable to be set aside. Hence, the present appeal deserves to be allowed and the appellant is 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 offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly applied Section 106 of the IE Act on the appellant, as the appellant has failed to explain as to how and in what manner his Page No.5 of 14 IN CRA-1420-2017 wife (deceased) suffered injuries and died. Further, in view of the statements of various prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Sections 302 & 201 of IPC. Thus, the present appeal deserves to be dismissed. (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/13), wherein it has been opined that cause of death of deceased cardio-respiratory failure due to shock and asphyxia due to smothering and nature of death is homicidal, which is duly proved by the statement of Dr. Madhuri Shandilya (PW-11). Accordingly, taking into consideration the postmortem report (Ex.P/13) and the statement of Dr. Madhuri Shandilya (PW-11), who has conducted the 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- appellant herein is the author of the crime in question, for which, Page No.6 of 14 IN CRA-1420-2017 though the learned trial Court has rejected the plea of extra-judicial confession allegedly made by the appellant, but invoked Section 106 of the IE Act by holding in Para-33 of the impugned judgment that since at the time of incident, the appellant, his mother (not examined) and his sister- Anil Kumari (PW-12) were only present and the dead-body of the deceased in burnt condition was also found in the courtyard of the house of the appellant and the appellant has also failed to explain as to how and in what circumstance his wife died (deceased) and her dead-body found in the courtyard, therefore, proceeded to convict him for the offence in question. Therefore, the core issue cropped up for consideration before us would be whether the learned trial Court has rightly invoked Section 106 of the IE Act or not? (11) In order to answer the plea raised at the bar, it would be first appropriate to notice Section 106 of the IE Act, which reads as under: “106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with traveling in a railway without a ticket. The burden of proving that he had a ticket is on him.” Page No.7 of 14 IN CRA-1420-2017 (12) In the matter of Anees v. The State Govt. of NCT1, 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. 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 1 2024 INSC 368 [Criminal Appeal No.437 of 2015, decided on 30.05.2024] Page No.8 of 14 IN CRA-1420-2017 court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might arise therefrom. Although not legally required to produce evidence on his own behalf, the accused may, therefore, as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution [See: Balvir Singh v. State of Uttarakhand, 2023 SCC OnLine 1261] ii. What is “ prima facie case ” (foundational facts) in the context of Section 106 of the Evidence Act? 49. The Latin expression prima facie means “at first sight”, “at first view”, or “based on first impression”. According to Webster’s Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the case or charges against the defendant. If they cannot present prima facie evidence, the initial claim may be dismissed without any need for a response by other parties. 50. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding guilt of the accused. 51. The presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. 52. To explain what constitutes a prima facie case to make Section 106 of the Evidence Act applicable, we should refer to the decision of this Court in State of W.B. v. Mir Mohammad and ors. (2000) 8 SCC 382, Page No.9 of 14 IN CRA-1420-2017 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 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 Page No.10 of 14 IN CRA-1420-2017 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. 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 Page No.11 of 14 IN CRA-1420-2017 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.” (13) In the matter of Nagendra Sah v. State of Bihar 2 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 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. 23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a 2 (2021) 10 SCC 725 Page No.12 of 14 IN CRA-1420-2017 failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.” (14) Reverting to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the above judgment, it is quite vivid as per the finding recorded by the learned trial Court in Para-33 of the judgment, apart from the appellant and the deceased, appellant’s mother (not examined) and his sister- Anil Kumari (PW-12) were also present in the house on the date and time of the offence. Therefore, the prosecution has miserably failed to prove that on the date and time of the offence, both the appellant and the deceased were the only inmates in the house in question. 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. Furthermore, 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 Page No.13 of 14 IN CRA-1420-2017 strained in any manner. Indeed, it is an evidence brought on record in shape of statement of sister of the appellant- Anil Kumari (PW-12) that the relationship between the appellant and the deceased were cordial and they used to reside happily. As such, in light of aforesaid infirmities, though the learned trial Court has held the death of the deceased to be homicidal in nature, which we have also affirmed in foregoing paragraph, but the prosecution has clearly failed to establish that the appellant and the deceased were the only inmates, who were present in the house at the time of commission of the offence and, therefore, in light of the decision of the Supreme Court in the matter of Anees (supra) and Nagendra Sah (supra), no prima facie case is made out for invoking Section 106 of IE Act and the learned trial Court is absolutely unjustified in doing so under the facts and circumstances of the present case. Hence, the same is liable to be and is hereby set aside. We hereby hold accordingly. (15) In view of forgoing analysis, the conviction and sentence of the appellant for offence punishable under Sections 302 & 201 of IPC, as imposed upon him by the learned trial Court, is hereby set aside. He is acquitted of the said charges on the basis of benefit of doubt. Since the appellant is reported to be on bail, he need not to surrender, however, his bail bonds shall remain in force for a further period of six months in view of provision contained under Section 437-A of CrPC. (16) Consequently, this criminal appeal is allowed. Page No.14 of 14 IN CRA-1420-2017 (17) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned for necessary information and action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge s@if