Pawan Kumar Deshmukh vs State Of Chhattisgarh,

Sanjay K. Agrawal, J

Two appellants, Pawan Kumar Deshmukh (A-1) and Smt. Kamla Bai Deshmukh (A-2) had preferred this criminal appeal under Section 374(2) of Cr.P.C. calling in question the legality, validity and correctness of the judgment dated 07.07.2014 passed by the First Additional Sessions Judge, Balod, in Sessions Trial No.81/2013, by which, the appellants herein have been convicted for the offence under Section 302 read with Section 34 of I.P.C. and sentenced to life imprisonment with fine of Rs.200/- each, in default of payment of fine to undergo 40 days additional simple imprisonment.

Since the appellant No.2 has died during pendency of this appeal, her appeal was disposed off having abated and her name has been deleted by order of this Court dated 21.11.2022, a such only appeal of appellant No.1 is being decided by this judgment.

Case of the prosecution, in short, is that Smt. Rekha Deshmukh (hereinafter called as deceased) was legally wedded wife of appellant No.1 and appellant No.2 was mother-in-law of the deceased and they were married 16 years back prior to date of offence. Further case of the prosecution is that on 25.10.2012 at about 10:00 a.m. at village Papra, Police Station- Suregaon, District Balod, in furtherance of their common intention, the appellant No.2 caught hold of deceased Rekha Deshmukh and appellant No.1 caused her death by smothering with the help of pillow. Thereafter, on the report of Mahendra Kumar Hardel, merg was registered under Section 174 of Cr.P.C. and inquest was conducted and dead body was sent for post-mortem, which was conducted by Dr. Sampat Lal Oika (PW-1), who has proved the post-mortem report vide Ex.P-1 and according to post-mortem report, cause of death was smothering and it was homicidal in nature, pursuant to which, FIR was registered and on the memorandum of appellant No.1, pillow was seized, but it was not subjected to chemical examination to FSL. After due investigation, the appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court and ultimately it was committed to the Court of Sessions for trial in accordance with law, in which the appellants abjured their guilt and entered into defence stating that they have not committed any offence.

In order to bring home the offence, prosecution examined as many as 12 witnesses and exhibited 20 documents; whereas the appellant/accused in support of his defence has neither examined any witness nor exhibited any document.

The trial Court, after appreciation of oral and documentary evidence on record, convicted and sentenced the appellants for the offence under Section 302 read with Section 34 of I.P.C., against which the present appeal has been preferred.

Mr. Praveen K. Dhurandhar, learned counsel for the appellants would submit that the incident took place in the house of appellant No.1 and appellant No.2 where apart from appellant No.1 and appellant No.2, husband of appellant No.2 Bhop Singh and two children were staying on the date of incident and therefore, the trial Court is absolutely unjustified in holding that it is a case of house murder. Furthermore, the pillow which was seized from the possession of appellant No.1, was not subjected to chemical analysis (FSL), therefore, it could not be concluded that said pillow was used in smothering of deceased Rekha. Furthermore, no saliva was found on the pillow seized and therefore, it is a case of no evidence and as such, appellant No.1 is entitled for benefit of doubt and deserves to be acquitted.

Mr. Sudeep Verma, learned State counsel would submit that the prosecution has been able to prove the offence beyond reasonable doubt and the learned trial Court has rightly convicted appellant No.1 for the offence under Section 302 of I.P.C. He further submits that it is a case of house murder where appellant No.1 has not explained under Section 106 of Evidence Act as to how his wife Rekha Deshmukh has died and in that view of the matter, the instant appeal deserves to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

The first question as to whether the death of the deceased Rekha Deshmukh was homicidal in nature, has been answered by the trial Court in affirmative holding the death to be homicidal in nature, relying upon the statement of Dr. Sampat Lal Oika (PW-1) who has proved the post-mortem report Ex.P-1, according to which, death occurred by smothering with the help of pillow. In our considered opinion, such finding recorded by the trial Court is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly we hereby affirm the said finding.

The trial Court has held that death of Rekha Deshmukh was homicidal in nature and it has been caused by appellant No.1 by smothering with the help of pillow seized from the appellant No.1 and it was stained with blood like spot, but surprisingly the pillow seized vide Ex.P-7 was not subjected to chemical analysis and therefore it could not be concluded that saliva was present on the pillow, as in the query report (Ex.P-2) in three places, saliva stains were noticed over the pillow by Dr. Sampat Lal (PW-1), but no chemical examiner report was brought on record to connect that saliva was present and it was of deceased Rekha Deshmukh. Dr. Sampat Lal Oika (PW-1) in his statement before the Court, in para 9, has clearly stated that he did not give any opinion for conducting chemical analysis of the saliva stains over the pillow. Even otherwise, the pillow which was seized from the possession of the appellant No.1 vide Ex.P-7 is a common object and ordinarily and usually available in every house and therefore, recovery of pillow from the possession of appellant No.1 vide Ex.P-7, in which no saliva was found belonging to deceased, is of no use to the prosecution and the learned trial Court is absolutely unjustified in connecting the appellant No.1 by seizure of the pillow from his possession.

The next incriminating circumstance, which has been found proved by the trial Court is that it is a house murder and appellant has not explained in his statement under Section 313 of Cr.P.C. which was required to be explained by virtue of Section 106 of the Indian Evidence Act.

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.”

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 accused persons were in such a position that they could have special knowledge of the fact concerned.

In the matter of Shambhu Nath Mehra v. The State of Ajmer AIR 1956 SC 404, their Lordships of the Supreme Court have held that the general rule is that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet 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 or inconvenience. The Supreme Court while considering the word “especially” employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J., observed as under: -

“11. …. The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23)

(A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49

(B) .”

Their Lordships further held that Section 106 of the Evidence Act cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts.

The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar (2021) 10 SCC 725 in which it has been held by their Lordships of the Supreme Court as under: -

“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.

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 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.”

Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab AIR 1956 SC 460, while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is 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 the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him.

The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar AIR 1974 SC 778 and it has been held that burden of proving the case against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence.

Now, the question is, whether the prosecution has discharged its initial or general burden or primary duty of proving the guilt of the accused beyond reasonable doubt ?

A careful perusal of the record would show that though the trial Court has recorded that it is a case of house murder, but the facts speaks otherwise. Mahendra Kumar (PW-2), father of the deceased, in his statement before the Court, in para 6, has clearly stated that in the house of her daughter (deceased), apart from his daughter and son-in-law (appellant No.1), his daughter’s mother-in-law (appellant No.2) and father-in-law Bhop Singh alongwith two children used to stay. Similarly, the sister of the deceased Lata Deshmukh (PW-7) in her statement before the Court has clearly stated that in village Papra, alongwith her sister, her mother-in-law, father-in-law and husband were also staying. As such, it is not a case where in the house, only the deceased and appellant No.1 were two inmates and staying therein and it is a case of house murder. As such, it has not been established that on the date of offence, only appellant No.1 and deceased (wife) both were living together and no other person was there. Rather, it is the case of the prosecution itself that on the date of offence, appellant No.2 caught hold of the deceased and appellant No.1 caused her death by smothering by way of pillow. As such, except the death of the deceased Rekha Deshmukh to be homicidal in nature, the prosecution has failed to discharge the primary burden of proving its case beyond reasonable doubt.

In our considered opinion, the prosecution has failed to discharge its primary burden of proving its case beyond reasonable doubt and merely on the basis of proving the death to be homicidal in nature and in view of above, Section 106 of the Evidence Act cannot be invoked and the appellant cannot be held guilty of the offence under Section 302 of the I.P.C. In a case of 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.

In view of the aforesaid discussion, appellant No.1 is entitled for acquittal on the ground of benefit of doubt. Accordingly, the impugned judgment dated 07.07.2014 is set aside. The appellant No.1 stands acquitted of the charge framed against him for the offence punishable under Section 302 of I.P.C. and he shall be forthwith set at liberty, unless he is required in connection with any other case.

The appeal is allowed to the extent indicated herein-above.