Chattisgarh High Court
Pyare Lal @ Feku vs State Of Chhattisgarh on 20 January, 2025
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.01.23
11:50:17 +0530
2025:CGHC:3355-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 436 of 2019
Pyare Lal @ Feku S/o Bhola Ram Aged About 28 Years Caste
Dhobi, Occupation Agriculture, R/o Village Bagbahar, Police
Station Bagbahar, District Jashpur, Chhattisgarh
... Appellant
versus
State Of Chhattisgarh Through Police Of Police Station
Bagbahar, District Jashpur, Chhattisgarh
... Respondent
For Appellant : Mr. J. K. Saxena, Advocate
For Respondent/State : Mr. Ashutosh Shukla, Panel Lawyer
(Division Bench)
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment On Board
(20.01.2025)
Sanjay K. Agrawal, J.
1. This criminal appeal has been preferred under Section 374(2)
of Cr.P.C. calling in question the legality, validity and
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correctness of the judgment of conviction and order of
sentence dated 01.07.2016, passed by learned Additional
Judge to Additional Sessions Court, Kunkuri, District
Jashpur (C.G.) in Sessions Trial No.16/2016, whereby the
appellant herein has been convicted for offence punishable
under Section 302 of the Indian Penal Code and sentenced
to undergo Life Imprisonment with fine of ₹500/- and in
default of payment of fine, to suffer one month additional
rigorous imprisonment.
2. The case of prosecution, in brief, is that on 28.01.2016 at
about 9:30 a.m., at village & PS Bagbahar, District
Jashpur, the appellant herein, assaulted his 5 year old
daughter Ku. Kinjal (now deceased) by an axe, due to which
she suffered grievous injuries and died. The matter was
reported to the Police by Bholaram (PW-1), pursuant to
which, Merg Intimation was registered vide Ex.P-1 and FIR
was registered vide Ex.P-2. Inquest was conducted vide
Ex.P-7 and dead body of deceased Kinjal was subjected to
post-mortem, which was conducted by Dr. Narendra Kumar
Ram (PW-8), who proved the post-mortem report Ex. P-19,
according to which, cause of death was stated to be cardio-
respiratory failure due to neurogenic shock due to
intracranial bleeding and death was homicidal in nature.
Pursuant to memorandum statement of appellant (Ex. P-
11), the weapon of offence i.e. axe was seized vide Ex. P-9,
which was sent for chemical examination to FSL along-with
other seized articles and as per the FSL report Ex. P-29,
blood was found on the said axe. After due investigation,
appellant was charge-sheeted for the aforesaid offence
before the jurisdictional criminal court, which was
ultimately committed to the Court of Sessions for hearing
and disposal in accordance with law, in which, the appellant
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abjured his guilt and entered into defence stating that he
has not committed any offence and he has been falsely
implicated.
3. During the course of trial, in order to bring home the offence,
prosecution examined as many as 17 witnesses and
exhibited 30 documents and the appellant-accused in
support of his defence has neither examined any witness
nor exhibited any document. The statement of appellant /
accused was recorded under Section 313 of the CrPC in
which he denied the circumstances appearing against him
in the evidence brought on record by the prosecution,
pleaded innocence and false implication.
4. The trial Court, after appreciation of oral and documentary
evidence on record, convicted and sentenced the appellant
herein as mentioned in the opening paragraph of this
judgment, against which the present appeal has been
preferred by the appellant questioning the legality, validity
and correctness of the impugned judgment.
5. Mr. J. K. Saxena, learned counsel for appellant would
submit that the appellant has been convicted invoking
Section 106 of the Evidences Act whereas as per the
statement of Bholaram (PW-1), he and his wife Fagni were
present in the house in question on the date and time of
offence. He would submit that the trial Court is absolutely
unjustified in convicting the appellant for the said offence
applying the provisions of Section 106 of the Evidence Act
and therefore, the appellant is entitled for acquittal on the
basis of the principles of benefit of doubt.
6. Mr. Ashutosh Shukla, learned State counsel, would support
the impugned judgment and submit that the prosecution
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has been able to bring home the offence beyond reasonable
doubt and the trial Court has rightly convicted the appellant
for offence under Section 302 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 gone
through the records with utmost circumspection.
8. The case of prosecution is not based on any direct evidence.
It is based solely on circumstantial evidence. However, the
Trial Court proceeded to convict the appellant applying
Section 106 of the Evidence Act.
9. Now, the question for consideration is as to whether Section
106 of the Indian Evidence Act would be applicable or not?
10. Section 106 of the Indian Evidence Act, 1872, states 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.”
11. This provision states that when any fact is specially within
the knowledge of any person the burden of proving that fact
is upon him. This is an exception to the general rule
contained in Section 101, namely, that the burden is on the
person who asserts a fact. The principle underlying Section
106 which is an exception to the general rule governing
burden of proof applies only to such matters of defence
which are supposed to be especially within the knowledge of
the other side. To invoke Section 106 of the Evidence Act,
the main point to be established by prosecution is that the
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accused persons were in such a position that they could
have special knowledge of the fact concerned.
12. In this regard, the Supreme Court in the matter of Nagendra
Sah v. State of Bihar1, in paragraphs – 19, 22 & 23 has
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 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
1 (2021) 10 SCC 725
6burden 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.
13. A careful perusal of the aforesaid judgment of the Hon’ble
Supreme Court would show that section 106 of the Evidence
Act would not be applicable where apart from the accused,
other persons were residing in the house where incident
took place. As in the case of Nagendra Sah (supra), apart
from the appellant, his parents were also present in the
house on the date and time of incident, their Lordships held
that other members of the family of the appellant were
present, would show that there could be another hypothesis
which cannot be altogether excluded.
14. Reverting to the facts of the present case, in light of the
aforesaid principles of law laid down by their Lordships of
the Supreme Court, it is quite vivid from the statement of
Bholaram (PW-1) that on the date and time of occurrence,
apart from the deceased and the appellant, he and his wife
Fagni were also present in the house in question. Bholaram
(PW-1) has clearly stated that in the morning of the incident,
he and his wife Fagni were sitting in the house. At that
time, the deceased was holding tea which she threw in the
fire. Thereafter, she ran towards the courtyard and fell on
the axe which was leaning against the wall due to which she
suffered injuries on her head and died during treatment in
the hospital. As per the statement of Bholaram (PW-1), the
head injury of the deceased was accidental in nature. From
the statement of Bholaram (PW-1) who is the grand-father of
the deceased, it is clearly established that on the date and
time of incident, he and his wife were present in the house.
As such, the Trial Court could not have invoked Section 106
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of the Evidence Act in the absence of explanation in how
and what circumstances the deceased suffered grievous
injury. Hence, in view of the principle of law laid down by
the Hon’ble Supreme Court in the case of Nagendra Sah
(supra), the provisions of Section 106 of the Evidence Act
would not be applicable in the facts of the present case.
15. Furthermore, on the basis of memorandum statement of the
appellant, the weapon of offence i.e. axe was seized vide Ex.
P-9 and as per FSL report Ex. P-29, blood was found on the
said axe. Though, on the weapon of offence blood was found
but it could not be established that the weapon of offence
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
Rajasthan2, which has been followed in the matter Raja
Naykar v. State of Chhattisgarh3, the finding of blood
stain on the seized article is one of the circumstances, on
the basis of which, the accused cannot be convicted for the
offence under Section 302 of IPC.
16. In that view of the matter, we are unable to sustain the
conviction of the appellant for the aforesaid offence.
Accordingly, the impugned judgment dated 01.07.2016
passed by the Trial Court convicting and sentencing the
appellant for offence under Section 302 of IPC is hereby set
aside/quashed on the basis of benefit of doubt and the
appellant is acquitted from the said offence. The 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.
2 (2011) 11 SCC 724
3 (2024) SCC Online SC 67
8
17. This criminal appeal, accordingly, stands allowed.
18. 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/-
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)
Khatai Judge Judge
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