AP^ M. HIGH COURT OF CHHATTISGARH AT BILASPUR \. DIVISION BENCH CORAM: HON'BLEMR. T.P. SHARMA & HON'BLE MR. R.L. JHANWAR, JJ. Cr. A. No.274/2004 APF^'LLANT (IN JAIL) Raju Yadav @ Durgacharan. •^^s^ RESPONDENT VERSUS State of Chhattisgarh. JUDGEMENT FOR CONSIDERATION Hon'ble Mr. R.L. JHANWAR J. T.P. Sharma Judge g^c^- Sd/- Post for Judgment on: 27/10/2010 Sd/- T.P.Shanna Judge AP^ <'^ HIGH COURT OF CHHATTISGARH AT BILASPUR \ ~ DIVISION BENCH CORAM: >S--;S!t!i-':!giM; p£;-..,; '^^•••^sSSSl B ^ M l^frS :^1%^ ^ ^ ^ ^t?^^^s^ HON'BLE MR. T.P. SHARMA & HON'BLE MR. R.L. JHANWAR. JJ. Cr.A. No. 274/2004 APFISLLANT (IN JAIL) VERSUS RESPONDENT Ra^'u Yadav @ Durgacharan, S/o Nathulal Yadav, aged 'about 28 years, R/o Village Khamhariya, P.S. Sarseeva, District Raipur. At present Chhawani Basti P.S. Jamul, District Durg (C.G.) State of Chhattisgarh, Through Police Station Jamul, District Durg (C.G.) CRIMINAL APPEAL UNDER SECTION 374(21 OF THE CODE OF CRIMINAL PROCEDURE. 1973. Present:- Mr. S.K. Tiwari, Advocate for the appellant. Mr. Arun Sao, G.A. for fhe State/respondent. JUDGEMENT (Passedon 27/10/2010) The following iudgment of the Court was passed bv T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 14/1/2004 passed by IInd Additional Sessions Judge, Durg in Sessions Trial No. 7/2003 whereby and where under after holding the appellant'guilty for the commission of offence of culpable homicide amounting to murder of his wife Santoshi and concealing the evidence of criminal case, convicted the appellant under Sections ^?. 302 85 201 of the Indian Penal Code and sentehced \ imprisonment for life 85 rigorous imprisonment for 5 years. Conviction is imp.ugned on the ground that without any iota of evidence sufficient for conviction of appeUant Court below has conyicted and sentenced the appellant •j'. as aforementioned and thereby committed an iUegality. As per case of the prosecution, on fateful intervening night of 4-5/3/2001 appellant were present along with his wife Santoshi (since deceased) in his house situated at Chhawani Basti, Bhilai District Durg. On second day at about 9:30 A.M. PW4 Tukaram Patel was informed by member of ward Bhagwat Chaturvedi and Jagatram Khutle that house of Santoshi was locked frora outside and body of somebody is lyuig inside the house and there is suspicion about some incident, he telephoned Police Station Jamul. Police Station Jamul recorded Rojnamcha vide Ex. P-9 and proceeded for spot. Panchnama of house was prepared vide Ex. P-1. Spot map was prepared vide Ex. P-2. Kundi of fhe door was broken, dead body of Santoshi was found lying in the room with injury over her neck. Dehatinalishi was recorded on the spot vide Ex. P-5. Dehatimarg was also recorded on fhe spot vide Ex. P-8. On the basis of Exs. P-5 SE P-8 finally First Information Report vide Ex. P-6 4. and marg intimation vide Ex. P-7 were recorded. After summoning the witnesses vide Ex. P-12, inquest over the dead body of depeased Santoshi was prepared vide Ex. P-2. Dead body was sent for autopsy to District Hospital, Durg vide Ex. P-13. PW9 Dr. P.K. Agrawal conducted the autopsy yide Ex. P-4 and found following ,,(: injunes:- (i) Swelling over the middle part of the neck and 2 abrasions of l/z x 1 c.m. (ii) Multiple contusions over other parts of the neck of4xl c.m. and 4x1 c.m. (iii) Contusion over right palm of 4 x 3 and 3 x 2 c.m. (iv) Larynges and trachea were congested. Blood was found in larynges and trachea. (v) Thyroid and cartilage bone of the neck was found fractured. Mode of death was throttling. During course of investigation, one plastic rope was found near fhe dead body was seized vide Ex. P-10 along with one ribbon. Lock of the door was seized vide Ex. P-11. One letter written by the accused was seized vide; Ex. P-15. During course of investigation, two photographs of accused and deceased Santoshi articles A & B were seized from the father of deceased PW12 Lakhanram vide Ex. P-3. Accused was absconded after ^ incident he was finally arrested by Sarsiwa Police Station District Raipur on 28/11/02. Statements of the. witnesses were recorded under Section 161 ofthe Code ofCriminal Procedure, 1973 (in short the Code'). After completion of the investigation charge sheet was filed,,before the Judicial Magistrate .y. First Class, Durg who in tum committed the case to the Court of Sessions, Durg frora where leamed IInd Additional Sessions Judge, Durg received the case on transfer for trial. In order to prove the guilt of the appellant/accused prosecution examined as many as 12 witnesses. Accused person was examined under Section 313 ofthe Code where he denied the circumstances appearing against him, innocency and false implication is claimed and has taken the defence that his wife is alive and is residing with her father. After affording an opportunity of hearing to the parties, learned IInd Additional Sessions Judge, Durg convicted and sentenced the appellant as aforementioned. Mr. S.K. Tiwari, leamed counsel for fhe appellant and Mr. Arun Sao, Govt. Advocate for the State/respondent are heard. Judgment impugned and record of the Court below perused. 9. Learned counsel for the appellant vehemently argued that conviction of the appellant is based on circumstantial evid.ence. In case of conviction based on circumstantial evidence prosecution is required to proof complete chain of circumstances, such chain of circumstances must 1pe complete and incapable of explanation of any other hypothesis then that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but shoiild be inconsistent with his innocence. 10. Learned counsel for the appellant further argued that appellant is not under obligation to explain how his wife died, who committed homicidal death of his wife and when he left his house. Entire burden is on prosecution to proof its case beyond all shadow of doubts even appellant is not under obligation to offer any explanation in terms of under Section 106 of the Evidence Act. In the present case, as per case of the prosecution, appellant was seen along with his wife at 10:00 P.M. he was taking meal with his wife, itself is not sufficient to proof the culpability of the appellant. 11. Leamed counsel for the appellant placed reliance in the matter of Stephen Seneviratne v. The King1 in which Priyy Council has held that no direction would be AIR 1936 Privy Council 289 justified to accused to proof the burden of any specific \, facts which was within his knowledge. 12. Learned counsel fpr the appellant further placed reliance in the matter of Shambhu Nath Mehra v. The State of AJiner2 in which Supreme Court has held that general rule in a crimina^ case the burden of proof is on •if. ,.(: the prosecution and S. 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to raeet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty of inconvenience. The word "especially stresses that. If means facts that are preeminently or exceptionally within his knowledge. 13. Leamed counsel for the appeUant also placed reUance in the matter of Sawal Das v. State of Bihar3 in which Supreme Court has held that neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is -3 1956 C 404 ((S) AIR V 43 C 71 June) (1974) 4 SCC 193 'A only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which that burden of proof lies upon the accused. 14. Leamed counsel for the,appellant also placed reliance 15. in the matter of Musheer Khan alias Badshah Khan and another v. State of Madhya Pradesh4 in which Supreme Court has held that presumption arising under Section 106 of the Evidence Act may have in civil or in less serious cruninal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence. On the other hand, learned Govt. Advocate for the respondent/State opposed the appeal and submits that on the date of incident, appellant was with his wife in his house. He took meal with his wife thereafter, dead body of Santoshi was found inside the house which is locked form outside and appellant was not present. In these circumstances, heavy burden was on appellant to explain when he parted company of deceased, why he had left his house after 10:00 P.M., when it could have been his natural conduct to stay his house along with his wife instead of leaving the house without any cause -(2010) 2 SCC 748 /-/)- \ that too at late night and absconded for 1 ^ These are the adverse circumstances and have not explained on behalf of the appellant and same would be sufficient for drawing presumption that appellant was a person who has committed the aforesaid offence. 16. Learned counsel for the respondent further submits that definitely, prosecution is under obligation to proof its case beyond all shadow of doubts. In the present case, prosecution has proved the fact that wife of the appellant was alive in the house of appellant and appellant was present in his house along wifh his wife at 10:00 P.M. The natural conduct of the appellant was to stay in his house. Appellant left the company of his wife and house at late night without any cause, second day morning dead body of wife of the appellant was found in the house of appellant, house of appellant was locked from out side, appeUant absconded from 1 1/2 years and has been finally arrested by Police Station Sarsiwa District Raipur on 28/11/02. AppeUant has not offered any explanation fhat when he left his house and company of his wife that too at late night and why he has not offered any explanation, why he was absconded 1 'A years, who has caused the death of his wife. These are the circumstances sufficient to prove ^^ ^ that appellant was the person who has committed murder of his wife. 17. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 18. In the present case, appellant has taken specific ^^ defence that his wife is alive and is residing with his father-in-law. Court has examined the father-in-law of the appellant PW12 LaKhanlal who has deposed that Investigating Officer has seized 2 photographs Ex. P-3 but Investigating Officer has not seized photographs articles A 85 B from him. Likewise, photograph-B does not contain the photograph of his daughter Santoshi. Documents of the prosecution and evidence does not reveal that why photographs were seized. Photographs were not placed for identification or comparison with the body of deceased or any photograph taken by the prosecution of the deceased. In these circumstances, factum of seizure of photographs is of no use. PW12 Lakhanlal had not deposed that his daughter is alive and is residing with him. In these circumstances, defence taken by the appellant is not supported by any piece of evidence or evidence of his father-in-law PW12 LaKhanlal. 10 19. 20. 21. In the present case, as per evidence of PW1 Mankunwar, appeUant was residing with his wife in her house as a tenant. Qn the date of incident, house was locked from outside, appellant was not present and finally dead body of wife of appellant was found inside the house. She has al^o deposed in Para-5 of her evidence that at about 10:00 P.M. she has seen the appellant with his wife while they were taking meal. In Para-9 of her cross-examination, she has further admitted that appellant and his wife had come to her for taking the house on rent. PW1 Mankunwar has also identified the dead body of Santoshi Ex. P-2 (inquest report). Nothing has been suggested by the appellant relating to identity of dead body that same was not the dead body of wife of appeUant. She was not stranger. PW3 Budhram co-tenant has deposed in his evidence that appellant and his wife were residing in the house of Mankunwar as a tenant. PW7 Babulal has deposed in his evidence that Police has seized photographs of Santoshi, which he knew from her childhood. These facts are sufficient for drawing an inference that dead body was found in the house of appellant was the dead body of wife of appellant Santoshi. As regard the homicidal death is concerned, as per evidence of PW9 Dr. P.K. Agrawal, injuiy was found s^ 8 -'l'::'^'.;i iii •£-? A' ^,,;.?' 11 ^ over the neck, thyroid and cartilage bone of the neck \, was found fractured of the body of deceased Santoshi. As per his opinion, cause of death was asphyxia as a result of throttling and same is unrebutted in his cross- examination and is sufficient for drawing presumption that Santoshi died as a .result of injuiy and deafh was ^.i homicidal in nature. 22. In the present case, evidence of PW1 Mankunwar landlord of the house is material. As per her evidence, appeUant and deceased were residing in one part of her house as a tenant. They used to woke up at 6:00 A.M. but on that day, they do not woke up at 7:00 A.M. sleeper of deceased was lying in front of her house then she informed that matter. She knocked the door and she called other persons and finally, after removing the tiles they saw inside the room where one body was lying. Matter was informed to Police and Police came and matter was inquired. Accused was present on previous night till 10:00 P.M. and second day morning he was not present. She has denied the suggestion in Para-10 of her cross-examination that one day prior to the incident appellant had gone form his house. Her evidence clearly reveals that appellant and his wife were residing in tenanted portion of her house. At 10:00 P.M. on previous night, she had seen the 12 appellant with his wife. On second day moming appellant was not found in his house. Door of the house was locked from outside and dead body of Santoshi i.e. wife of appellant was found inside the house occupied by the appellant. 23. PW4 Tukaram Patel has deposed that after receiving ,1'. information of incident then he has telephoned to police station Jamul. PW11 R.N. Singh, Investigating Officer has proved fhe factxim of information received from the PW4 Tukaram Patel and recorded such information as Ex. P-9. Document relating to remand of the accused and copy of diary of Police Station Sarsiwa District Raipur reveal that on the basis of infonnation given by fhe Jamul Police Station appellant was arrested at Khamariya Thana Sarsiwa, District Raipur on 28/11/02 after about 1 Vi years of the incident. 24. In case of Stephen Seneviratne (Supra) Privy council has held that only on faili-u-e of explain the circumstances prosecution does not absolve from its liability. Definitely, this is primaiy duty of the prosecution to prove its case beyond all shadow of doubt and only conviction cannot be sustained on the basis of non-offering any explanation by the accused in terms of under Section 106 of the Evidence Act but in the present case prosecution has adduced the evidence 13 ^ relating to material circumstances which indicates that present appellant was the author of crime. In these circumstances, appellant was iinder obligation to explain that when he parted the company of the deceased Santoshi or why absconded frorn his house i.e. natural place of residence that too for more than I'/a years at late night. In case the circumstances are explained, then same would have been sufficient to absolve the appellant from his liability but appellant has not offered any explanation that would be ta-eated as adverse circumstances against the appellant. 25. In case of Shambhu Nath Mehra (Supra) Supreme Court has held that general rule in a criminal case the burden of proof is on the prosecution and S. 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to rneet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty of inconvenience. 26. Definitely, in the present case, appellant was present in his house along with his wife. He has left his house, his wife was found dead as a result of injuiy, he did not come back his house for long time. These are special 14 '^ facts which were only within the knowledge of appellant and not within the knowledge of other person therefore, it was impossible and disproportionate difficult for the prosecution to establish fhe aforesaid facts. As held in case of Shambhu Nath Mehra (Supra) appellant was under obligation to prove the fact which was especially ,1'. within his knowledge. 27. In case of Sawal Das (Supra) Supreme Court has held that Sections 106 8s 103 of fhe Evidence Act does not absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out aprimafacie case, that the question arises of considering facts of which that biu-den of proof lies upon the accused. In the present case, prosecution has discharged its primaiy burden to prove the case. In these circumstances, appeUant was under obligation to prove the fact which was especially within his knowledge. 28. In case of Musheer Khan alias Badshah Khan and another (Supra) Supreme Court has held that presumption arising under Section 106 of the Evidence Act may have in civil or in less serious criminal cases, in a trial for murder it is extremely weak in comparison ?' 15 29. with the dominant presuraption of innocence. Definitely \., proving of charge on circumstantial evidence, presumption of innocence of the accused must have dominant role. Paras 44 8s 45 reads thus:- "44. The next principle is that in order to justify the inference of guilt, the inculpatory fdct^ must be incompatible urith the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis except his guilt. 45. When a murder charge is to be proved solely on circumstantial evidence, as in this case, presumption ofinnocence of the accused must have a dominant role. In Nibaran Chandra Roy v. King Emperor it was held that the fact that an accused person was found with a gun in his hand wnmediately after a gun was fired and a man was killed on the spotfrom which the gun an error of law to hold that the burden ofproving innocence lies upon the accused under such circumstances. It seems, therefore, to follow that whatever force a presumption arising under Section 106 of the Evidence Act may have in civil or in less serious criminal cases, in a trialfor murder it is extremely weftk in comparison with the dominant presumption of innocence. Prosecution is required to discharge its primary burden and if prosecution successfully discharge its primary burden fhen accused is required to proof special facts which was within his knowledge. 16 30. As per evidence of PW1 Meinkunwar, appellant was \. present with deceased Santoshi at 10:00 P.M. in his house thereafter, dead body of Santoshi was found inside the house and appeUant was not found in his house. Definitely, appellant was seen in the company of deceased Santoshi last t,ime at 10:00 P.M. and her dead "'f. body was found inside the house of appellant. In these circumstances, appellant was under obligation to explain when he parted the company of deceased Santoshi. 31. Wliile dealing with the question of last seen together, the Supreme Court in the case of Sahadevan alias Sagadevan v. State represented by Inspector of Police, Chennai has held that if the prosecution on the basis of reliable evidence establishes that the missing person was last seen in the company of the accused and was never seen thereafter, then it would be obligatoiy on the accused to explain the circumstances in which the missing person and the accused parted company. Para 19 ofthe saidjudgment reads thus:' "29. The last circumstance relied on by the caurts below pertains to the stand taken by the appellants in the trial as to parting company with Vadivelu. Here we must notice that as discussed hereinabove, the 5(2003) 1 SCC 534 17 c^ prosecution has established the fact that Vadivelu u)as seen in the company ofthe appellants from. the moming of 5.3.1985 till at least 5 p.m. on the same day, when he was brought to his house and thereafter his dead body was found in the moming of 6.3.1985. Therefore, it has become obligatory on the appellants to satisfy the ^: ' - - . court as to ho.ui, where and in what manner Vadivelu parted company with them.. This is on the principle that a person who i's last found in the company of another, if later found rnissing, then the person with whom he was last found kas to explain the circumstances in which they parted company. In the instant case the appellants have failed to discharge this onus. In their statement under Section 313 Cr.P.C. they have not taken any specific stand whatsoever. In the evidence of PW- 25, it is elicited that on 5.3.1985 in the aftemoon when Vadivelu was produced before the said witness, he after interrogation allowed Vadivelu to go, but then it is found from his evidence that he instructed A-l to keep a watch over Vadivelu. In such circumstances, it was incumbent upon A-l to have explained to the court in what circumstances they parted company. He has not given any explanation in this regard. On the contrary, the prosecution has established the fact that on the very day at about 5 p.m., Vadivelu was brought to the house of PW-1 by the appellants which was seen by^PW-5. 18 This part ofthe evidence ofPW-5 has gone unchallen^ed in the cross-examination and, therefore, we will have to proceed on the basis that, wJT.at is stated by PW-5 in this regard is true. Ifthat be so, the prosecution has established the fact that on 5.3.1985 at 5 p.m. Vadivelu was still in the company of these appellants and, therefore, in the <( absence of any^spedfic explanation from the appellants in^this regard, and in view of the other incriminating circumstances against the appellants having been proved by the prosecution, an adverse inference will have to be drawn against these appellants as to theirpart in the missing of Vadivelu. At this point, it may be relevant to note that though no specific stand has been taken by the appellants as to their parting company with Vadivelu, in their statement under Section 313 Cr.P.C., it is seenfrom the evidence ofPWs.l and 5 that A-l told the said witnesses on the night intervening between 5-3-1985 and 6-3- 1985 that Vadivelu had escaped from the Police Station when he was allowed to sleep in the verandah ofthe Police Station. This explanation given by A-l to PW-1 which was also heard by PWs.5 and 14, clearly shows that-the same is totally false and obviously was an excuse made by the appellants to conceal the true facts and, therefore, this circumstance of A-l making a false statement to PW-1 can also be taken as a circumstance against the appellants, in establishing the appellants' 19 guilt. This Court in more than one