1 CRA No. 75 of 2018 2026:CGHC:98-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 75 of 2018 [Arising out of judgment dated 20.11.2017 passed in Sessions Trial No.69/2016 by the Additional Sessions Judge Katghora, District Korba, Chhattisgarh.]  Baalakram Patel S/o Bandhan Singh, aged about 27 years, R/o Lotnapara Uatarda, Present Address Reldabri Uatarda, Police Chouki Hardibazar, Thana Kusmunda, District Korba, Chhattisgarh. ... Appellant versus  State of Chhattisgarh Through Police Chauki, Hardi Bazar, Police Station Kusmunda, District Korba, Chhattisgarh. ... Respondent For Appellant :- Mr. Vikas Pandey, Advocate. For State-Respondent :- Mr. Amit Buxy, Deputy Government Advocate. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (02.01.2026) Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellant herein, is to the legality, ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2026.01.03 13:12:09 +0530 2 CRA No. 75 of 2018 validity and correctness of the judgment dated 20.11.2017 passed by the Additional Sessions Judge, Katghora, District Korba, Chhattisgarh, in Sessions Trial No.69/2016, by which the appellant herein has been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer rigorous imprisonment for life with fine of 2,000/-; in default of payment ₹ of fine, he has to undergo rigorous imprisonment for one year and also convicted for offence under Section 201 of the IPC and sentenced thereunder to suffer rigorous imprisonment for 2 years with fine of 1,000/-; in default of payment of fine, he has to ₹ undergo imprisonment for six months. Both the sentences are directed to run concurrently. Prosecution story:- 2. The case projected by the prosecution and accepted by the trial Court is that on 26.04.2016 in the evening between 7:00 pm to 8:00 pm at village Reldabri Uatarda, District Korba, Chhattisgarh, the appellant caused the murder of Butanabai @ Kendabai by assaulting her with the help of hammer and to screen himself from the offence, he buried the dead body of the deceased with the help of acquitted co-accused Nohar Sai Patel near the Leelgar river, thereby committed the offence. Unnumbered merg and FIR were registered vide Exs.P/1 & P/30, respectively. Numbered 3 CRA No. 75 of 2018 merg and FIR were registered vide Exs.P/25 & P/28, respectively, against unknown person. Dead body was identified by PWs-1, 2, 3, 4, 5, 7, 8, 9 & 11 as Butanabai @ Kendabai. Nazari naksha was prepared vide Ex.P/10. Inquest proceedings (Ex.P/5) were conducted and the dead body of the deceased was subjected to postmortem. As per postmortem report (Ex.P/29) proved by Dr. A.N. Kanwar (PW-16), cause of death was coma & asphyxia due to head injury and strangulation and homicidal in nature. Wheels of investigation started running and the appellant was arrested. Pursuant to memorandum statement of the appellant (Ex.P/15) hammer, spade and his clothes were seized. Other articles were also seized. Seized articles were sent for chemical analysis, however FSL report has not been brought on record for the reason best known to the prosecution. 3. After due investigation, appellant herein was charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution has examined as many as 17 witnesses; exhibited 49 documents and Article-A, whereas, defence, in support of its case, has neither examined any witness nor exhibited any document. The statement of the 4 CRA No. 75 of 2018 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. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which the instant appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 6. Mr. Vikas Pandey, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting appellant for offences in question. He would also submit that the trial Court has wrongly invoked Section 106 of the Indian Evidence Act, 1872 (for brevity “IEA”) to base the conviction of the appellant and wrongly relied upon the alleged confession which was made before the police and apart from that seizure of hammer is of no use to the prosecution in absence of FSL report. Therefore, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed. 5 CRA No. 75 of 2018 7. Mr. Amit Buxy, learned State counsel, would oppose the prayer made by learned counsel for the appellant and submit that the trial Court has rightly invoked Section 106 of the IEA to base the conviction of the appellant for the offences in question and also rightly relied upon the extra-judicial confession and other incriminating circumstances. Therefore, the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submission made herein above and gone through the records precisely. Discussion & Analysis:- 9. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/29) proved by Dr. A.N. Kanwar (PW-16), which, in our considered opinion, is a correct finding of fact based on evidence available on record and the same is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature. 10.Now, the next question is, whether the appellant is author of the crime in question? 6 CRA No. 75 of 2018 11.It is pertinent to mention here that the trial court has invoked Section 106 of the IEA to base the conviction of the appellant holding that the appellant, deceased and appellants wife Sarojbai (PW-6) used to live in the house in question at village Reldabri Uatarda. 12.Now, the question would be, whether Section 106 of the Indian Evidence Act, 1872, would be applicable or not? 13.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.” 14.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 7 CRA No. 75 of 2018 that the accused persons were in such a position that they could have special knowledge of the fact concerned. 15.The Supreme Court in the matter of Nagendra Sah v. State of Bihar1 has clearly held that the fact of presence of other members of the family would show that there could be another hypothesis which cannot be altogether excluded and observed 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 1 (2021) 10 SCC 725 8 CRA No. 75 of 2018 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.” 16.Coming to the facts of the present case, in light of principle of law laid down by their Lordships of the Supreme Court in the matter of Nagendra Sah (supra), the trial Court has wrongly applied Section 106 of the Evidence Act to base the conviction of the appellant as the trial Court has clearly recorded a finding at para 12 of its judgment that except the appellant and the deceased appellant’s wife Sarojbai (PW-6) was also present in the house in question. As such, to the facts of the present case Section 106 of the IEA would not be applicable and the trial Court has wrongly invoked Section 106 of the IEA to base the conviction of the appellant and also for the reason that it is not a case of house murder and dead body of deceased Butanabai @ Kendabai was found near the Leelgar river, therefore, we hereby set aside the finding of the trial Court in this regard. 17.Next piece of evidence on which the trial Court has relied upon to base the conviction of the appellant is extra judicial confession. As per the prosecution case, the the appellant made the confession 9 CRA No. 75 of 2018 before Brijbai (PW-1), Sukhnandan (PW-2), Ganesh Ram (PW-8) and Amarlal Yadav (PW-11). However, the confession made by the appellant is inadmissible in law as per Section 25 of the IEA as the same was made before the police. Even otherwise, the same is not true and voluntary as on being asked by the police, the appellant is said to have made the confession. As such, the confession is of no use to the prosecution and the appellant could not be convicted on the basis of said confession that too for offence under Section 302 of the IPC. Furthermore, seizure of hammer is of no use to the prosecution in absence of FSL report Thus, the appellant is entitled for acquittal on the basis of benefit of doubt. Conclusion:- 18. In view of the aforesaid discussion and analysis, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 20.11.2017 passed by the trial Court convicting and sentencing the appellant for the offences in question, is hereby set aside and the appellant is entitled for acquittal on the basis of principle of benefit of doubt as the prosecution has also failed to complete the chain of circumstances in light of decision of the Supreme Court in the matter of Sharad Birdhichand Sarda v. 10 CRA No. 75 of 2018 State of Maharashtra 2 . Since the appellant is stated to be on bail, he need not surrender. However, his bail bond shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC. 19. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ankit 2 (1984) 4 SCC 116