HIGH COURT OF CHHATTISGARH BILASPUR D.B: Hon’ble Shri Rajeev Gupta, C.J., & Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 697 of 2003 ' Nirmal Kumar Nisad Vs. v v State of Chhattisgarh JUDGMENT For consi%ration Sdl- Sunil Kumar Sinha Judge Post for Juggment 1Q/09/2/008 9 ig/ '" Sd/. 21/ ' Jadge / 0 /09/2008 HON’BLE SHRI JUSTICE RAJEEV QUPTA @ HIGH COURT OF CHHATTISGARH BILASPUR A (Agpeai under Section 374 (2) of The Code of Criminal Procedure) Appearance: Shri Rewa Shankar Patel, Counsel for the appellant. Shri Akhil Mishra, Dy. Govt. Advocate, for the State. JUDGMENT (10.09.2008) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant— Nirmal Kumar Nisad stands convicted under Sections 302 & 201 l.P.C. by the Additional Judge to the Court of Additional Sessions Judge, Dhamtari in Sessions Trial No. 324/2001 on 5.5.2003 and sentenced, to undergo imprisonment for lifeand to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo R.l. for 1 year and R.l. for 7 years and fine of Rs.1 ,000/—, in default of payment of fine to further undergo R.l. for 1 year. (2) Deceased— Rekha Bai was wife of the appellant. She was aged about 20 years. She was married with the appellant one year D.B: Hon’ble Shri Rajeev Gupta, C.J. & Honfble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 697 of 2003 APPELLANT Nirmal Kumar Nisad S/o Shri Dhelu Ram Nisad, Aged about 22 years, Occupation — Agriculture R/o- Village— Magrlod, Tehsil & Dist.— Dhamatari (Cg) Versus REEPONDENT State of Chhattisgarh Through Police ‘ Station — Magrlqd, Dist.- Dhamatari ' (C.G.) 2 Criminal Agpgal No. 697 of 2003 prior to the date of incident, which took place on 13.5.2001. On this date, the deceased was found in hanging condition in her bed-room. The matter was reported to the concerned police station by the co- afccused Cherku Ram, grand—father of the appellant, on which, a merg intimation, Ex.-P/9 was recorded. The body was kept as it is in room till arrival of the police. When the police reached there, the room was opened and Panchnama was prepared vide Ex.-P./2. lt appears in Panchnama that the knees of the dead body were touching the floor and the body was hanging from the roof of the é ro‘om (mayar) by a saree. The dead body was sent for postmortem touErimary Health Centre, Magarlod, where, the postmortem examination was conducted by a team of two Doctors namely Dr. Sharda Thakur (PW-10) and Dr. T.R. Dhruw. They prepared their report Ex.—P/6.‘ The Autopsy Surgeons found that the body was swollen; tongue was protruding rout of mouth; eye balls were also protruding and skin was showing wetness. There was no ligature mark on the neck and the knot of the ligature (saree) was on the right side of the neck. Besides, lips, nails and entire faCe were found bluish. On internal examination hyoid bone was found fractured and there was profusion of blood in brain. Liver, spleen and kidney were found congested. The- Autopsy Surgeons opined that the caiJse of death was asphyxia as a result of strangulation which may be due to l throttling, gagging or smothering and the death was homicidal in 1 nature. After getting postmortem report, the First information Report, 3 Ex.-P/10, was registered and further investigation was completed and the charge-sheet was filed in the concerned Court against the m appellant and his grand-father, co—accused- Cherku Ram. (3) The Learned Sessions Judge, on the basis of following circumstantial evidence, convicted and sentenced the appellant as aforementioned, however, the co-accused- Cherku Ram was acquitted: (i) The appellant and the deceased were not keeping cordial relations as the appellant was doubting the ‘ l 3 Criminal Appeal N0. 697 of 2003 fidelity of the deceased and a village Pahchayat had also taken piace in this regard; (ii) The death .was homicidal but it was reported to the police as if it was suicidal & (iii) The dead body of the deceased was found in the room of the appellant, where they were residing separately and the appellant did not give any explanation for the same. r (4L , Learned counsel for the appellant argued that the conviction based on such circumstantial evidence cannot be sustained and the appellant deserves to be acquitted. ~£ (5) On the other hand, learned counsel for the State opposed s these argUments and supported the‘judgment passed by the trial Court. We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. ti (7) So far as the mode and nature of the death is concerned, the Q evidence of Autopsy Surgeon (PW-10) shows that almost all the ’ symptoms of asphyxial death were found and he has opined that asphyxia may be as result of strangulation or throttling, gagging or smothering. If we examine this opinion with regard to the other features found on the dead body, particularly on the neck, it would appear that there was no ligature mark on the neck and the hyoid bone was fractured. This clearly rules out the theory of hanging . setforth by the defence as in case of death by hanging with a saree, ante-mortem ligature marks must be found on the portion of the i neck. Not only this, positioning of the dead body on hanging condition also reveals that it was not a case of death by hanging because the knees of the dead body were found touching the floor. In these circumstances, it can not be inferred that it was a case of suicidal hanging and not of homicidal death. Therefore, the finding of (6) 4 Criminal Appeal No. 697 of2003 the Court below that it was a gase of homicidal deatH can not be said to be fault with. ‘“ (8) Now the question arises as to why a homicidal death was reported as a suicidal death by the co-accused, Cherku Ram. Cherku Ram has been acquitted on the ground that he reported the matter to the police what he could observe and told by the appellant. Admittedly, in the fateful night, the appellant and the deceased both vilere the only inmates of the room in which the dead body was found therefore the entire responsibility was on the appellant to explain as to how the things occurred and If he did not explain all this It was an addrtlonal Circumstances rn favour of the prosecution As per Section 106 of The Evrdence Act the burden was on the appellant toexplaln how and In what Circumstance the murder of his wife was committed. Merely remaining silent does not discharge the burden, which was on the appellant. (9) No doubt, in a criminal case like this, initially the prosecution was required to establish the ingredients of the offence and then burden shifts on the accused to discharge by cross examining the prosecution witnesses or by adducing his evrdence to show that how the murder of deceased was commrtted ln the present case the prosecution was able to discharge Its burden whereas the accused was not able to discharge his burden which was on him as per the prOVISIons of Section 106 of The EVIdence Act as he throughout remained Silent and even no explanation was offered In lu‘s 313 Cr.P.C. statement. ln this regard, the following Judgments of the Apex Court are important. ln the matter of Trimukh Maroti M Kirkan -vs- State of Maharashtra 2006 AIR SCW 5300 interpreting the provisions of section 106 of the Evidence Act, the Apex Court held as follows: ........ if an offence takes place inside the l l ‘ privacy of a house and in such circumstances where I the assailants have all the opportunity to plan and commit the offence at the time and In Circumstances of a.“ 5 Criminal Appeal No. 697 of 2003 @ their choice, it will be extremely difficult for the prosecution to Iead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence; as noticed above, is insisted upon by the Court. A Judge does not preside over a criminal trial merely‘to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape! Where an offence like murder is committed in secrecy inside a, house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it -to establish the charge cannotl'be of the same degree as is required in other cases of circumstantial evidence. The burden would be of comparatively lighter character. ln view of 3.106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden 'to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. In case of no explanation or false explanation it would because an additional link in chain of circumstances.” (10) Further in the matter of State of Raiasthan Vs‘. Kashi Ram 2006 AIR SCW 5768 while interpreting section 106 of the Evidence Act the Apex Court held that: “Whether an inference ought to be drawn under Section 106 is a question which must be determined by reference to facts proved. lt is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts. The respondent, accused 6 Criminal Appeal N0. 697 of 2003 having been seen Iast with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by 8.106 ”of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt.‘ r The Court further held that: ‘L ......The Principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is~upon him. Thus if a person is last seen with the deceased, he must offer an explanation as to how and when he' parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. ln a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden‘placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is' always upon the prosecution. lt lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure 7 W Criminal Appeal N0. 697 of 2003 to adduce any explanation, as an additional Iink which completes the chain. The principle has been succinctly stated in Naina Mohd’s case reported in AIR 1960 Madras218. 7(11) In the instant’case, the accused has not thrown any light as to how the deceased was strangulated, how she received injuries and in what circumstances the incident took place. ‘(12) Apart from the above, it'comes in the evidence of father and nlother of the deceased namely— Tukaram (PW-3) & Sohadra Bai (PW—4)-that_ the appellant was suspecting the fidelity of the deceased and the relations between the appellant and the deceased were not cordial and the deceased was maltreated by the appellant on this account. (13) in view of the above evidence on record, we find that the conviction of the appellant is based upon cogent, clinching and reliable circumstantial evidence and we do not find any illegality or infirmity in the judgment of conviction and order of sentence passed by the learned Sessions Judge. (14) The appeal tiled by the appellant deserves to be and is accordingly dismissed V/M/ Sdl- V; g6; m; Chief Justice sunil Kumar Sinha Judge vatti