Saturday, 11 June 2016

Whether S 106 of Evidence Act can be invoked against accused if his presence near spot of offence is not proved?

 It would now be necessary to consider provisions of Section 106
of the Evidence Act, 1872. As per Section 106 of the Evidence Act, 1872,
when any fact is especially within the knowledge of any person, then the
burden of proving that fact is upon the said person. It is well settled that
Section 106 of the Evidence Act, 1872 does not relieve the prosecution of the
burden of proving its case beyond all reasonable doubt.  It is only when the
prosecution case has been proved that the burden with regard to such facts
which are within the special knowledge of the accused could be shifted on
the accused for explaining the same.  Reference in this regard can be made to
the judgment of the Hon'ble Supreme Court in Vikramjit Singh Vs. State of
Punjab 2006 (12) SCC 306. 
In  Sharad Kondiba Walke (supra),  the  Division   Bench  while
considering   aforesaid   provisions   held   that   if   the   initial   presence   of   the
accused has not been established by the prosecution, the question of invoking
the provisions of Section 106 of the Evidence Act, 1872 would not arise.  It is
only after initial burden of establishing the presence of the accused at the site
of the crime is discharged that the provisions of Section 106 of the Evidence
Act, 1872 could be applied.   Similar view has been taken by the Division
Bench in Subhash Gorakh Khankal (supra). 
Thus, from the aforesaid, once it is found that the prosecution has
failed to show the presence of the appellant at some time proximate to the
occurrence of the crime, the provisions of Section 106 of the Evidence Act,
1872   cannot   be   applied.     Moreover,   the   present   case   being   based   on
circumstantial   evidence,   each   circumstance   leading   to   the   guilt   of   the
appellant is required to be proved independently and beyond reasonable
doubt. The presence of the appellant near the scene of the incident having
not been satisfactorily proved and the same being one of the major links in
the chain of circumstances, it will have to be held that the prosecution has
failed in proving the guilt of the appellant.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.592 OF 2013
Sunil s/o Latari Khuje 

­vs
State of Maharashtra, 

CORAM  : B. R. GAVAI & 
 A.S.CHANDURKAR JJ.
  DATE   :  MARCH 28, 2016 
Citation:2016 ALLMR(CRI)2212


The appellant who has been convicted for the offence punishable
under Section 302 read with Section 201 of the Indian Penal Code (for short,
the Penal Code) has challenged judgment dated 31/07/2013 passed by the
learned Additional Sessions Judge, Chandrapur in Sessions Case No.82 of
2012. 
The case of the prosecution as can be gathered from the material
on record is that on 08/05/2012 a call was received by the City Police
Station,  Chandrapur that a foul smell was coming from a house owned by

one   Harishchandra   Chamate.     The   appellant   along   with   his   family   was
residing therein.  Said  Harishchandra came on the spot after which the lock
of   the   door   was   broken   by   the   police.     There   the   dead   body   of   one
Panchafula, the  sister  of  Harishchandra was found.   On  that basis,  said
Harishchandra lodged his report on 08/05/2012.   
2. After the report was registered, investigation was carried out.  A
charge­sheet was duly filed in which the appellant was arrayed as an accused
for the offence punishable under Section 302 of the Penal Code.    The case
was committed to the Sessions Court and as the appellant did not plead
guilty, he was tried for aforesaid offence.  At the conclusion of the trial, the
appellant was convicted as stated herein above.    
3. Shri R. M. Daga, the learned counsel for the appellant submitted
that   the   appellant   had   been   wrongly   convicted   by   the   Sessions   Court.
According to him,  there was no eye witness to the incident and that merely
on the basis of surmises, the appellant had been convicted.  It was submitted
that the presence of the appellant was not shown in the house at any time
proximate to the incident.     In absence of presence of the appellant being
proved, it was not permissible for the prosecution to rely upon the provisions
of Section 106 of the Evidence Act for convicting the appellant.   It was then
submitted that the appellant was married in the year 2001 and there was no

earlier report with regard to ill treatment of the deceased at his instance.
There   were   various   contradictions   in   the   version   of   PW­1   who   was   the
brother   of  the  deceased  as  well  as  PW­5  who  was  the  daughter  of   the
appellant.       It   was   further   submitted   that     even   the   time   of   death   of
Panchafula was not brought on record and therefore in absence of such
evidence, it would not be safe to convict the appellant for the aforesaid
offence.   
In support of aforesaid submissions, the learned counsel placed
reliance on the judgments of the Division Bench in  Sharad s/o Kondiba
Walke vs. State of Maharashtra 2010 ALL MR (Cri) 899 and Subhash
Gorakh  Khankal vs. The State of Maharashtra  2015 ALL MR (Cri) 2481.
4. On  the  other   hand  Shri  S.   M.  Ghodeswar,  learned   Additional
Public Prosecutor supported the judgment of the Sessions Court.   It was
submitted that the appellant being the husband of the deceased, it was for
him to explain the manner in which the deceased received fatal injuries.  He
submitted that the appellant had left his daughter at house of PW­1 with the
clear intention of doing way with his wife.  It was urged that as the appellant
was   the   husband   and   the   couple   was   residing   together,   it   was   for   the
appellant to explain the aforesaid under Section 106 of the Evidence Act.  No
such   explanation   was   forthcoming   from   the   appellant.     It   was   further
submitted   that   PW­3   had   deposed   about   the   demand   of   dowry   by   the

appellant which was another circumstance against the appellant.   It was
therefore submitted that the learned Judge of the Sessions Court was fully
justified in convicting the appellant.   
5. With the assistance of the learned counsel for the parties we have
gone through the entire records and we have given due consideration to their
respective submissions.  The homicidal death of Panchafula is sought to be
proved by relying upon the Post Mortem Report.  PW­8 Dr Shital Todase was
examined vide Exhibit­37.  According to her,  Panchafula died due to head
injury with fracture on right temporal and frontal bone with extra dural and
intracranial   haemorrage   with   asphyxia   due   to   strangulation.     The   Post
Mortem report is at Exhibit­38.  There is no serious challenge to the aforesaid
report   in the cross examination of said witness.  Accordingly,  it is held that
the   prosecution   has   succeeded   in   proving   the   homicidal   death   of   said
Panchafula.
6. To bring home the guilt of the appellant, the prosecution has
examined PW­1 Harishchandra below Exhibit­17.   He was the brother of
Panchafulabai.     According   to   him,   on   05/05/2012   he   had   brought   the
daughter of the appellant from the boutique of her mother to his house.  On
the same day, in the evening, he along with his family members went to
Warora for attending a marriage.  He returned back on 08/05/2012,   after

which he received a phone call that there was some bad smell coming from
his house.   He got knowledge of the incident on that basis.   In his crossexamination,
he has denied that he had not visited the work place of his
sister on 05/12/2012.
7. The mother of the deceased,   Shakuntala was also examined as
PW­3 below Exhibit­26. He has stated that on 05/05/2012, between 7 p.m.
to 7.30 p.m. the appellant along with his mother had come to their house
and demanded a sum of Rs.2,00,000/­.  After some time both of them left the
place.   In   her   cross­examination,   this   witness   admitted   that   she   had   not
informed either her son or her husband about the demand made by the
appellant. She has further denied suggestion that on 05/05/2012 at about 11
a.m. Harishchandra had brought the daughter of the deceased to their house.
8. The prosecution has also examined the daughter of the appellant
as PW­5 below Exhibit­28.   She stated that on 05/05/2012 at about 2.30
p.m., Harishchandra had taken her to his house.  She has further stated that
on the same day between 7 p.m. to 7.30 p.m. the appellant and his mother
had visited her grand mother's place.
In her cross­examination, certain omissions as found in her police
statement were put to her.   She has denied that on 05/05/2012 in the
evening her father had left the house for attending a marriage.

 9. It   would   first   be   necessary   to   consider   as   to   whether   the
prosecution has brought on record   the time of death of Panchafula.   The
house in question from where the body of Panchafula was found was locked.
Said lock was broken in presence of the informant and the witnesses on 8­5­
2012. PW­8 Dr. Shital Todase in her deposition stated that the exact time of
her death before 4 pm on 08/05/2012 could not be stated.   She further
stated that in the month of May, the process of decomposition of the dead
body would be faster.  Rigor mortis could be well developed within 48 hours
in the summer season.  The Post Mortem report at Exhibit­38 states that the
body was totally decomposed and rigor mortis was well marked in all the
limbs.  Thus, there is no material on record to indicate the probable time of
death of Panchafula. 
10. It   would   then   be   necessary   to   consider   as   to   whether   the
prosecution has proved the presence of the appellant at the place where dead
body of Panchafula was found.  Though it is a fact that the appellant was the
husband of Panchafula and they were residing together, in absence of any
cogent evidence indicating the proximate time of death coupled with fact
that   the   same   is   likely   to   have   taken   place   between   05/05/2012   and
08/05/2012, it would be necessary for the prosecution to prove the presence
of the appellant during said period at the site of the crime. PW­12 who had
carried out the investigation on receiving the phone call regarding foul smell

emanating from the premises admitted in his cross­examination that during
his investigation, he found that the deceased was alive till about 2.30p.m. on
05/05/2012.  He further admitted that during his investigation, the appellant
was   not   found   on   the   spot   or   at   a   place   nearby   between   2   p.m.   on
05/05/2012 till he arrived at the spot on 08/05/2012. He further admitted
that he had not recorded the statement of the owner or servants working in
the boutique where Panchafula used to go. 
No other witness examined by the prosecution has deposed about
the presence of the appellant at the spot of the incident between 2.30p.m. on
05/05/2012 till 08/05/2012 when the body of Panchafula was found. It will
thus, have to be held that the prosecution has failed to prove the presence of
the appellant near the site of the incident during the relevant time. 
11. It would now be necessary to consider provisions of Section 106
of the Evidence Act, 1872. As per Section 106 of the Evidence Act, 1872,
when any fact is especially within the knowledge of any person, then the
burden of proving that fact is upon the said person. It is well settled that
Section 106 of the Evidence Act, 1872 does not relieve the prosecution of the
burden of proving its case beyond all reasonable doubt.  It is only when the
prosecution case has been proved that the burden with regard to such facts
which are within the special knowledge of the accused could be shifted on
the accused for explaining the same.  Reference in this regard can be made to
the judgment of the Hon'ble Supreme Court in Vikramjit Singh Vs. State of
Punjab 2006 (12) SCC 306. 
In  Sharad Kondiba Walke (supra),  the  Division   Bench  while
considering   aforesaid   provisions   held   that   if   the   initial   presence   of   the
accused has not been established by the prosecution, the question of invoking
the provisions of Section 106 of the Evidence Act, 1872 would not arise.  It is
only after initial burden of establishing the presence of the accused at the site
of the crime is discharged that the provisions of Section 106 of the Evidence
Act, 1872 could be applied.   Similar view has been taken by the Division
Bench in Subhash Gorakh Khankal (supra). 
12. Thus, from the aforesaid, once it is found that the prosecution has
failed to show the presence of the appellant at some time proximate to the
occurrence of the crime, the provisions of Section 106 of the Evidence Act,
1872   cannot   be   applied.     Moreover,   the   present   case   being   based   on
circumstantial   evidence,   each   circumstance   leading   to   the   guilt   of   the
appellant is required to be proved independently and beyond reasonable
doubt. The presence of the appellant near the scene of the incident having
not been satisfactorily proved and the same being one of the major links in
the chain of circumstances, it will have to be held that the prosecution has
failed in proving the guilt of the appellant.  The evidence on record is not
sufficient to sustain the conviction of the appellant.  He would be entitled for

benefit of doubt.
13. In   view   of   aforesaid,   the   impugned   judgment   convicting   the
appellant cannot be sustained.  Accordingly the following order is passed : 
(i)  The appeal is allowed.   The judgment of conviction in Sessions
Trial No.82 of 2012 dated 31/07/2013 is quashed and set aside.
(ii)  Appellant be set at liberty forthwith, if not required in any other
case. 
                                                               JUDGE                            JUDGE

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