1 2025:CGHC:6995-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 572 of 2022 Rajendra Kurrey @ Raju S/o Shri Jagnarayan Kurrey Aged About 38 Years R/o Dewadand Ghutripara, Police Station Khadgawan, at present Resident of Bada Bazar, Lakdi Dipo, Police Station Chirmiri, District Korea, Chhattisgarh. ... Appellant(s) (In Jail) versus State of Chhattisgarh Through Station House OfÏcer, Police Station Chirmiri, District Korea, Chhattisgarh. ...Respondent(s) For Appellant : Mr. Shashi Kumar Kushwaha, Advocate. For Respondent/State : Mr. S.S. Baghel, Deputy Government Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 07 .02.2025 1. Heard Mr. Shashi Kumar Kushwaha, learned counsel for the appellant. Also heard Mr. S.S. Baghel, learned Deputy Government Advocate, appearing for the respondent/State. BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.02.17 18:27:34 +0530 2 2. This criminal appeal is preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 28.02.2022, passed by the learned Second Upper Session Judge, Manendragarh, District Korea (C.G.) in Sessions Trial No. 21 of 2017, whereby the appellant has been convicted and sentenced as under: Conviction under Section Sentence Section 302 of the Indian Penal Code (for short, ‘IPC’) Rigorous imprisonment (for short, ‘R.I.’) for life imprisonment and fine of Rs. 1000/-, in default of payment of fine, 04 months R.I. more. Section 201 of the IPC R.I. for 05 years and fine of Rs.1000/-, in default of payment of fine, 04 months R.I. more. All the sentence run concurrently. 3. Case of the prosecution, in brief, is that on 13.11.2016, complainant, namely, Ambika Prasad Sonwani (PW-1), received information from his cousin, Shravan Kumar (PW-2), that his sister, Shanti Kurrey, died in Chirmiri. Later, Ambika received a phone call from brother of the accused, Surjeet, asking him not to come to Chirmiri, but to go to Devadand. Thereafter, Ambika and his family members went to house of the accused in Devadand, where they found Shanti's body covered with a cloth in the khalihaan (barn). They observed injuries and swelling on Shanti's face, hands, and feet. Geeta Bai Kurrey (PW-5) and Mewakali Bai (PW-12), examined the private part of Shanti and found severe 3 injuries and bleeding. When questioned, the accused stated that Shanti left her brother's house two days prior and returned home on the previous evening. He claimed that Shanti got angry when he questioned her about leaving, and in a fit of rage, he beat her severely, including inserting a stick into her private part, which ultimately led to her death. The accused then transported the body of the deceased from Chirmiri to Devadand in a vehicle. Ambika reported the incident to the Khadgawan Police Station, and a Merg Intimation (Ex.P/1) was registered. Later, based on the report of Ambika, a First Information Report (FIR) (Ex.P/2) was registered against the accused, Rajendra Kurrey for the offences punishable under Sections 302 and 201 of the IPC. The Police issued notices to the witnesses vide Ex.P/6A. The dead body of the deceased was sent for postmortem vide Ex.P/14A, which was conducted by Dr. S. Kujur (PW-19) and gave a postmortem examination report (Ex.P/14). A crime details form (Ex.P/3) of the location where the accused kept the body of the deceased in his khalihaan (barn) was also prepared. During the investigation, the unnumbered FIR (Ex.P/12) was registered at Chirmiri Police Station, bearing Crime No. 391 of 2016, for the offences punishable under Sections 302 and 201 of the IPC. A crime details form (Ex.P/4) of the crime scene was prepared in the presence of witness Ambika Prasad Sonwani (PW-1). The Tehsildar, Khadgawan/Chirmiri, was requested (Ex.P/16) to provide a spot map (Ex.P/10). Five pieces of broken red bangles were seized from the crime scene in the presence of witnesses Noor Mohammad (PW-9) and Madan Vishwakarma (PW-10). A memorandum statement (Ex.P/20) of the accused was recorded, in which he mentioned hiding a wooden stick used in the crime in a bush 4 near his residence. The wooden stick was recovered and seized vide Ex.P/18 in the presence of witnesses Noor Mohammad and Madan Vishwakarma. The accused half-shirt (Ex.P/19) was also seized. Sealed packets containing the deceased’s clothes, including a pajama, undergarments, kurta, and bra, along with a blood sample, were seized (Ex.P/9) and sent for forensic examination. A vehicle bearing registration No. CG-16-CF-1952, along with its registration book, insurance papers, and driver's license, were seized (Ex.P/8) from the possession of accused Mohammad Altaf Ansari. Statements of the witnesses were recorded, and the accused Rajendra Kurrey (Ex.P/21) and Mohammad Altaf Ansari (Ex.P/15) were arrested. 4. Dead body of the deceased was sent for postmortem to the Community Health Center, Khadgawan, District Korea (C.G.). Dr. S. Kujur (PW-19) conducted postmortem vide Ex.P/14A and found following injuries :- (i) The head of the deceased showed swelling on the upper part. There was a cut injury above the right ear, measuring 2 cm in length and 0.5 cm in width, which extended to the bone. The left eye had an abrasion, 3 cm long and 2 cm wide, with redness. The left side of the forehead had a bruise, 3 cm long and 1 cm wide. Multiple small contusions were present on the middle of the forehead. (ii) The lower lip had abrasions on both sides. The right-sided abrasion measured 1.5 cm in length and 0.5 cm in width. The mouth was closed. (iii) The left chest, above the breast, had a contusion over the 7th, 8th, and 9th ribs, measuring 8 cm in length 5 and 4 cm in width. Another contusion was present below the left breast, 4 cm long and 3 cm wide. (iv) The left upper arm had a long linear scratch. The inner side of the left upper arm had a contusion, 4 cm long and 2 cm wide. Both upper arms were straight, with the fingers curled inward. All fingernails were discolored blue. (v) The back, from the lower end of the scapula to the middle, had longitudinal scratch marks, covering an area 31 cm long and 29 cm wide. Innumerable abrasions were present within this area. (vi) The genital area showed injuries, with scratch marks around it. The injuries extended to the inner thighs. Blood oozed from the genital area, which was lacerated and severely damaged, with bleeding. (vii) The right knee had a contusion, 2 cm long and 2 cm wide, surrounded by redness, 6 cm long and 5 cm wide. Another contusion, 3 cm long and 1 cm wide, was present on the right knee. (viii) The left knee had a contusion, 3 cm long and 1 cm wide, with surrounding redness, 7 cm long and 7 cm wide. The right leg had a contusion, 2 cm long and 2 cm wide. Both legs were straight. After conducting the postmortem, the Doctor expressed his opinion in the postmortem report vide Ex.P/14 that the cause of death of the deceased is shock due to head injury and rupture of vagina and the nature of death was homicidal. 5. Statements of the witnesses were recorded. After due investigation, the Police had filed the charge-sheet against the accused before the jurisdictional criminal Court and the case was committed to the Court of 6 Session for trial from where the learned Second Upper Session Judge, Manendragarh, District Korea (C.G.) received the case on transfer for trial and for hearing and disposal in accordance with law. 6. The trial Court has framed charges against the appellant for the offence punishable under Sections 302 and 201 of the IPC and proceeded on trial. 7. The accused abjured guilt and entered into defence. But, the prosecution against accused Mohammad Altaf Ansari has failed to prove the charges under Sections 302 and 201 of the IPC beyond reasonable doubt. Therefore, accused Mohammad Altaf Ansari was acquitted giving the benefit of doubt for the charges under Sections 302 and 201 of the IPC by the trial Court. 8. In order to bring home the offence, the prosecution examined as many as 21 witnesses and exhibited 23 documents. The accused examined none in their defence. 9. The learned trial Court, upon appreciation of oral and documentary evidence available on record, by its judgment dated 28.02.2022, convicted the accused/appellant for the offences punishable under Sections 302 & 201 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed. 10. Learned counsel for the appellant vehemently argued that the conviction of the appellant is substantially based on the circumstantial evidence, without there being any eye witness, though the chain of circumstances are missing and not connected to each other. None of the witnesses have supported the case of prosecution. He further submits 7 that even if the entire case is taken at its face value, the case would not travel beyond Section 304 (Part-I or Part-II) of the IPC. Evidence adduced on behalf of the prosecution is suspicious in nature and same is not safe for placing reliance that too for conviction of the appellant for commission of heinous offence of murder, therefore, the appellant is entitled to benefit of doubt. 11. On the other hand, learned State counsel supports the impugned judgment and submits that there is ample evidence on record to connect the accused/appellant with the offence in question. The learned trial Court, after proper appreciation of the evidence and materials available on record, has convicted and sentenced the appellant/accused, which warrants no interference, and therefore, the appeal deserves to be dismissed. 12. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the trial Court with utmost circumspection and carefully as well. 13. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 14. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased was homicidal in nature ? 15. The trial Court, relying upon the statement of Dr. S. Kujur (PW-19), who has conducted postmortem on the body of deceased, vide Ex.P/14A, has clearly come to the conclusion that the cause of death of the deceased is shock due to head injury and rupture of vagina and the 8 nature of death was homicidal. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellant. We hereby afÏrm the said finding. 16. The next question for consideration would be, whether the trial Court has rightly held that the appellant is author of the crime by relying upon the following circumstances:- (i) Homicidal death was proved by the prosecution as per postmortem report (Ex.P/14) of Dr. S. Kujur (PW- 19) who conducted postmortem. (ii) As per the case of the prosecution, the fact of death of deceased was within the knowledge of the appellant, however, there was no any explanation given by the appellant in his statement under Section 313 of the Cr.P.C. Thus, burden of proof was on the appellant to explain such circumstance, which he failed to explain. 17. Now, the question would be, whether Section 106 of the Evidence Act would be applicable or not? 18. 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.” 19. 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 9 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. 20. In the matter of Shambhu Nath Mehra v. The State of Ajmer1, their Lordships of the Hon’ble Supreme Court have held that the general rule 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 difÏcult, for the prosecution, to establish facts which are “especially” within the knowledge of the accused and which he could prove without difÏculty 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 cannot be the intention and the Privy Council has twice refused 1 AIR 1956 SC 404 10 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. 21. The decision of the Hon’ble Supreme Court in the matter of Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar2 in which it has been held by their Lordships of the Hon’ble 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. 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 2 (2021) 10 SCC 725 11 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.” 22. Similarly, the Hon’ble Supreme Court in the matter of Gurcharan Singh v. State of Punjab3, 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. 23. The principle of law laid down by their Lordships of the Hon’ble Supreme Court in the matter of Gurcharan Singh (supra) has been followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar4 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. 3 AIR 1956 SC 460 4 AIR 1974 SC 778 12 24. In the present case, cause of death of the deceased was shock due to head injury and rupture of vagina and the nature of death was homicidal and the use of pointed object has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Dr. S. Kujur (PW-19) and the postmortem report (Ex.P/14) that the death of deceased was homicidal in nature. 25. As regards complicity of the appellant in crime in question, conviction of the appellant is substantially based on the evidence of Dr. S. Kujur (PW-19). 26. Dr. S. Kujur (PW-19), who conducted the postmortem of the deceased vide Ex.P/14A found the injuries as stated in paragraph 05 of this appeal and he opined that the cause of death of the deceased was shock due to head injury and rupture of vagina and the nature of death was homicidal. 27. Ambika Prasad Sonwani (PW-1), the brother of the deceased, has stated in his deposition that on the date of incident, he was at home when Shravan (PW-2) informed him that his sister Shanti Bai died. He then informed his parents and other family members. When they inquired about the incident, brother of the accused told them over the phone not to go to Chirmiri, but to come to Devadand, where the body was found. When they arrived at the house of the accused in Devadand, they found body of the deceased was lying outside in the courtyard. Upon removing the cloth covering the body, they noticed injuries on deceased’s face, neck, stomach, and shoulders, as well as internal injuries. They then informed the villagers and the Police at Khadgawan Police Station. The merg 13 intimation (Ex.P/1) and the FIR (Ex.P/2) were registered. 28. Shravan Kumar (PW-2) corroborated the statement of Ambika Prasad Sonwani (PW-1), stating that about a year ago, his mother-in-law, Mewakali (PW-12), called him around 8.00 a.m. to inform him that Shanti Bai died in Chirmiri. He then informed Ambika Prasad Sonwani (PW-1) about the incident. 29. Inspector D.R. Tandon (PW-18) confirmed that he registered the merg intimation (Ex.P/1) and the FIR (Ex.P/2) based on the statement of Ambika Prasad Sonwani. 30. Jagjahir (PW-6), the father of the deceased, has stated in his deposition that on the day of the incident, he and his wife, Kaushilya Bai, gone to their daughter Gita Bai's house at Chhipchhipi village. They received a phone call from a boy namely, Shravan, who informed Ambika Prasad Sonwani that Shanti Bai had been murdered in Chirmiri around 8.00 p.m. Upon receiving this information, Jagjahir went to Devadand, where he found body of the deceased was lying in the courtyard of the house of the accused. Initially, accused claimed that deceased died of injuries sustained by falling while she was drunk. However, when the village Sarpanch arrived, they examined the body and found multiple injuries. 31. Geeta Bai (PW-5), the elder sister of the deceased, has stated in her deposition that her brother Ambika Prasad Sonwani called to inform her that their sister Shanti died. At that time, their parents were also with her. Upon receiving the news, she along with her husband Amarnath (PW-3), mother Kaushilya, father Jagjahir, and brother Ambika, went to 14 house of the accused at Devadand. When they arrived, they found body of the deceased was lying outside in the courtyard of the house of accused. Upon removing the cloth covering the body, they noticed injuries and bruises on the body of deceased, including her face, back, legs, chest, and private part. There were also sign of bleeding from the injuries. 32. Mewakali (PW-12), who is the sister of the accused, has corroborated the statement of Geeta Bai (PW-5). 33. The defence did not challenge the statements of these witnesses regarding seeing body of the deceased in the courtyard of the house of the accused at Devadand. Therefore, their testimony on this point remains unchallenged. 34. From the statements of Ambika Prasad Sonwani (PW-1), Shravan Kumar (PW-2), Jagjahir (PW-6), Geeta Bai (PW-5), Amarnath (PW-3), Mewakali (PW-12), Jeetlal (PW-4), and Hira Singh (PW-8), it is clear that they all supported each others statements. Their statements clearly indicate that body of the deceased was found lying in the courtyard of the house of the accused at Devadand, which they all witnessed. 35. Surya Dev Singh (PW-7), has stated in his deposition that he lives in the Forest Department's Quarters, where accused also resides with his family. On the morning of the incident, Surya Dev went for a walk around 6:00 a.m. and had tea with his neighbor, Tiwari. When they returned to their quarters, they saw the accused standing outside his residence. The accused told them that his wife, Shanti Bai, had been unwell on the previous night, had asked for water at 2:00 a.m., and had not moved since morning. The accused claimed that he was taking the deceased her 15 home. Later, it was discovered that accused had transported the body of the deceased to his village, Devadand, in a pickup truck. The defence did not challenge the testimony of this witness regarding the statement of the accused about his wife's illness and his decision to take her home. 36. 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? 37. In this regard, the trial Court observed that it is evident that the Shanti Bai lived with the accused, Rajendra Kurrey, as his wife in his house, and they had children together. They resided in a Forest Depot house in Bada Bazar, Chirmiri. On 13.11.2016, Rajendra Kurrey told Surya Dev Singh (PW-7) that his wife, Shanti Bai, was unwell, had asked for water at 2:00 a.m., and was unresponsive in the morning. He claimed that he was taking her home. Accused then took the deceased to his village, Devadand, in a pickup truck. Witnesses saw body of the deceased in the courtyard of the house of the accused at Devadand, with injuries on her body as also private part. Her vagina was torn, and the blood was oozing out. The postmortem report revealed that death of the deceased was caused by head injuries and vaginal tearing, leading to shock. The nature of the death was homicidal. Dr. S. Kujur (PW-19), who conducted the postmortem of the deceased estimated that the death occurred between 10:55 p.m. on 12.11.2016, and 4:55 a.m. on 13.11.2016, at the Forest Depot house in Bada Bazar, Chirmiri, where the accused and the deceased lived together. The accused failed to provide a clear explanation for the death of the deceased, despite being required to do so under Section 106 of the Indian Evidence Act, 1872. Therefore, an 16 adverse inference has rightly been drawn against the accused, supporting the prosecution's conclusion that Rajendra Kurrey caused the death of his wife, Shanti Bai Kurrey. Further from the perusal of the FSL report (Ex.C/1) states that bloodstains were found on the bet (stick) and shirt seized from the accused, and on the pajamas, blouse, undergarments, kurta, and bra of the deceased. However, since the seizure of the shirt from the accused is not proven, the presence of blood on the shirt does not benefit the prosecution. Although the seizure of a wooden stick (bet) from the instance of accused and the presence of blood on it are proven, the prosecution did not send the seized stick for chemical examination to determine whether the injuries on the deceased's body and private part could have been caused by the stick. Additionally, the report does not confirm that the blood on the stick and shirt was human blood. The accused failed to provide any explanation for the circumstances that implicated him in the crime. The prosecution successfully proved the facts of the case through reliable evidence, establishing the guilt of the accused beyond reasonable doubt. 38. A careful perusal of the aforesaid findings recorded by the trial Court would show that the prosecution has established that, 1. death of deceased was homicidal in nature; 2. it is the appellant who has murdered the deceased. 39. Considering the statements of the prosecution witnesses, the finding recorded by the trial Court in its judgment, the facts that the appellant has not offered any explanation under Section 313 of the Cr.P.C., it is clearly and reliably established that it was the 17 accused/appellant, who caused the death of the deceased and in this regard, there is no defence on the part of the accused/appellant during his examination under Section 313 of the Cr.P.C., and therefore, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted the accused/appellant for the offences punishable under Sections 302 & 201 of the IPC. Therefore, we do not find any illegality or irregularity in the findings recorded by the trial Court. 40. For the foregoing reasons, the criminal appeal being devoid of merit is liable to be and is hereby dismissed. 41. It is stated at the Bar that the appellant is in jail, he shall serve out the sentence as ordered by the learned trial Court. 42. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 43. Let a certified copy of this judgment along with the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Brijmohan