Chattisgarh High Court
Santosh Singh vs State Of Chhattisgarh on 4 March, 2025
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.03.10
10:39:07 +0530
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)
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 Maharashtra 2
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
9The 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
10accused 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
11Mohammad 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
12knowledge 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
15the 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
16of 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 Karnataka 6, 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 Rajasthan 7,
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