1 2025:CGHC:6031-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 534 of 2021 Aaytu Poyami S/o Shri Madda Payami Aged About 35 Years Caste Madiya Occupation Agriculturist , R/o Village Kodenar Hadmapara, Thana Kodenar, District Baster Jagdalpur Chhattisgarh., District : Bastar (Jagdalpur), Chhattisgarh ... Appellant versus State Of Chhattisgarh Through The District Magistrate Jagdalpur , District Baster Chhattisgarh., District : Bastar (Jagdalpur), Chhattisgarh ... Respondent (Cause title taken from Case Information System) For Appellant : Mr. Sunil Sahu, Advocate For Respondent/State : Mr. Swajeet Singh Ubeja, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri R avindra Kumar Agrawal , Judge Judgment on Board Per Ram esh Sinha, C.J. 03/02/2025 1. The present criminal appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 06.04.2021, passed by learned Sessions Judge, Bastar, place Jagdalpur, in Sessions case No. 56 of 2019, whereby the appellant has been convicted for the Digitally signed by VEDPRAKASH DEWANGAN 2 offence under Section 302 of IPC and sentenced for R.I. for life with fine of Rs. 500/-, in default of payment of fine additional R.I. for 03 months. 2. The brief facts of the case are that the husband of the deceased namely Mahangu Poyam has died 03 months back from the date of incident by ailment. Mase Poyam was having affair with her nephew Ayatu Poyam, who is the present appellant. Various village meetings were called on the issue of their relationship and they were convinced not to continue their relationship as they were aunt- nephew in relation. The deceased Mase Poyam was having two children from her husband, having 10 years and 7 years of age. On 21.05.2019, the deceased Mase Poyam came to the house of Mahangu Poyam and informed that the appellant came to her house and threatened her that he will assault her. She takes shelter in the house of Somdu along with her children. On 23.05.2019, both the children of the deceased Mase Poyam came to his house and informed that the appellant came to their house in the night and after taking dinner he stayed there. At about 7:00 am, when they returned back to their own house and tried to woke up the deceased Mase Poyam, she could not woke up and when the persons of the vicinity went to the house of the deceased, they saw that Sukdi was wearing the clothes to the deceased Mase Poyam and informed that she saw the dead body of the deceased in naked condition and found the injury mark on her neck. She also noticed the injuries on her chest. Mahangu has given the merg intimation/Exhibit P-5 and lodged FIR/Exhibit P-6 on 23.05.2019 and the offence under Section 302 of 3 IPC has been registered against the appellant. The inquest/Exhibit P- 9 of the dead body of the deceased was prepared in presence of the witnesses and the dead body was sent for its post-mortem to Community Health Centre, Badekilepal, District Bastar, where PW- 2/Dr. D.P. Bhardwaj conducted post-mortem of the dead body of the deceased and gave report Exhibit P-2. While conducting the post- mortem of the dead body of the deceased, blood found on the left side of face, bruise on left side of neck and cartilage of neck was dislocated and there was fracture of trachea. He opined that the cause of death is due to sudden compression of neck caused respiratory asphyxia with cardiac arrest and mode of death was kept pending for police investigation. ******* The spot map/Exhibit P-7 was prepared by the police and P-1 was prepared by the Patwari. A query was raised from the doctor vide memo/Exhibit P-16 and the doctor has replied the query vide Exhibit P-3, in which he opined that; (i) To sudden compression of respiratory tract lead respiratory asphyxia – yes, (ii) Yes, if bleeding on front on neck, it may fracture Hyoid bone, (iii) Homicidal in nature and the manner of death – homicidal in nature due to sudden compression of respiratory tract leading respiratory asphyxia. 3. The appellant was arrested on 27.05.2019 and he too was sent for his medical examination to Community Health Centre, Badekilepal, where PW-2 had medically examined him and gave report/Exhibit P- 4 and no injury have been found on his body. Statement of the witnesses under Section 161 of CRPC have been recorded and 4 statement under Section 164 of CRPC of the witness Mahangu Poyam has also been recorded and after completion of usual investigation, charge sheet was filed before the learned Judicial Magistrate First Class, Jagdalpur against the appellant for the offence under Section 302 of IPC. 4. The learned trial Court has framed charge against the appellant for the offence under Section 302 of IPC. The appellant denied the charge and claimed trial. 5. In order to prove the charge against the appellant, the prosecution has examined as many as 10 witnesses. Statement of the appellant under Section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. He further stated that the witnesses have encroached his land and cultivated it and also tried to grab his remaining part of the property and when he raised objection, they involved him in the alleged offence. 6. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence this appeal. 7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of the prosecution witnesses and their statements are inconsistent. There is 5 no eyewitness to the incident and the circumstances are very weak and did not corroborate with each other. The chain of circumstance has also not been proved. The evidence of the children of the deceased is also not sufficient to hold the appellant guilty for the alleged offence and only on apprehension the appellant has been involved in the case. The case of the prosecution rests on the last seen theory, which is a very weak circumstance, therefore in absence of any cogent and clinching evidence the appellant cannot be held guilty for the offence of commission of the murder of the deceased Mase Poyam and he is entitled for acquittal. 8. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and have submitted that there is sufficient evidence available in the case against the appellant that he committed the murder of the deceased Mase Poyam. On the date of incident, he was with the deceased and there is clinching evidence of last seen together, which has been proved by PW-4 who is the son of the deceased. There is evidence of motive also that the relation between the deceased and the appellant were objected by the village persons and a village meeting was also convened. Prior to the incident also the appellant committed marpeet with the deceased. The appellant has failed to explain as to how the deceased found in injured condition in her house when both of them were seen together at the relevant point of time and therefore there is sufficient evidence available in the case to hold his conviction for the alleged offence and the learned trial Court has rightly convicted and sentenced him which needs no interference. 6 9. We have heard learned counsel for the parties and perused the record. 10. So, far as the homicidal death of the deceased is concerned, the learned trial Court has relied upon the evidence of PW-2/Dr. D.P. Bhardwaj, who conducted the post-mortem of the dead body of the deceased. PW-2 has stated in his evidence that on 30.05.2019, he conducted the post-mortem of the dead body of the deceased and found injuries on her neck. Her trachea was found fractured and thyroid cartilage was also dislocated. He opined the cause of death is sudden compression of neck leading to respiratory asphyxia with cardiac arrest. He proved his post-mortem report (exhibit P-2). He also proved the query report (exhibit P-3), in which he disclosed that the manner of death is homicidal in nature due to sudden compression of respiratory tract leading respiratory asphyxia. Nothing could be extracted from the evidence of Dr. D.P. Bhardwaj/PW-2, so that his evidence could be disbelieved that the death of the deceased was not homicidal in nature, but for some other reason. He proved whatever he found during the post-mortem of the dead body of the deceased. 11. The post-mortem report (exhibit P-2) is supported by the merg intimation (exhibit P-5) and inquest (exhibit P-9) in which also the witnesses have stated about the injury found on the body of the deceased and thus, after considering the evidence led by the prosecution that the death of the deceased was homicidal in nature is based on proper appreciation of evidence, which is neither perverse nor contrary to the record. 7 12. So far as the involvement of the appellant in the offence in question is concerned, the case of the prosecution is based on the circumstantial evidence that at the relevant time, the appellant came to the house of deceased, and quarreling with her. Due to their quarrel, PW-4 went to his neighbour’s house and in the next morning his mother is found dead in injured condition in her house. 13. PW-4 is the son of the deceased, who stated in his evidence that he knew the appellant who is his uncle and the deceased was his mother. On the date of incident, the appellant came to his house and started quarreling with his mother. Then they take shelter to the house of his neighbour Somdu. On the next day, the appellant again came to his house and again started assaulting his mother and he again went to the house of Somdu and in the next morning when he returned back to his house, he saw that her mother is lying dead in his house. He along with his sister had gone to the house of his uncle Mahangu Poyam and thereafter his uncle and other villagers came to his house and thereafter police also came there. In cross examination, he admitted that he has not seen the incident that the appellant in assaulting his mother. He is the witness to the incident of two days back when the appellant came to his house and assaulting his mother. He firmly stated that two days back when the appellant came to his house, he assaulted his mother. He denied by giving his statement that on the next day also the appellant came to his house and started assaulting his mother during recording of his police statement/Exhibit D-2. He further stated in his evidence that on the date of incident, the appellant came to his house at about 5:00 p.m. and at about 8:00 p.m. he went to the house of Somdu. He admitted that his agricultural field is cultivating by his uncle Mahangu. He further admitted that the land of the appellant is also cultivating by his uncle 8 Mahangu and after death of his mother, he along with his sister is residing along with his uncle Mahangu. ******* From the evidence of this witness, the defence could not extract any material to hold that on the date of incident, the appellant was not come to the house of the deceased and it is found proved that on the date of incident, the appellant came to the house of the deceased and started quarreling with her, then the PW-4 went to the house of Somdu and in the next morning, when he came to his house, he found his mother lying dead. Though he has not seen the actual assault made by the appellant to his mother, but he proved that when he had gone to the house of Somdu, the appellant and deceased were together in his house. He also proved the incident of marpeet occurred two days prior to the date of incident. 14. PW-5/Baman Karma and PW-3/Mahangu Poyam are the witnesses to the inquest (exhibit P-9). PW-5/Baman Karma has stated in his evidence that on the date of incident at about 9:00 a.m., the children of the deceased Mase came to his house and informed that Ayatu has committed murder of their mother. When he had gone to the house of the deceased, he saw her dead body and injuries on her body. He is the witness of the Inquest (exhibit P-9). He also came to know that two days prior to the date of incident, the appellant assaulted the deceased and due to his fear, both the children had gone to the house of his neighbour. ******* At this stage, this witness has declared hostile with respect to the relationship between the appellant and the deceased. In cross- 9 examination, he remained firm in saying that on the next date, he came to know about the incident and since he is neither the eyewitness nor the witness of last seen, his evidence is not much more relevant, but proved the motive part of the evidence that the appellant and deceased were having affair for which a village meeting was called 2-3 times. ******* PW-3/Mahangu Poyam has also stated in his evidence that the deceased Mase was his sister-in-law in relation. A day before the date of incident, the deceased came to him and informed that the appellant came to her house to beat her and then he convinced her that if she was having any fear, she may not have returned to her house. Along with the deceased Mase, her two children were also there with her, but she returned back to her own house. On the next morning, her both the children had come to him and informed that their mother had been murdered and in the night, the appellant Ayatu came to their house. She immediately rushed to the house of the deceased and saw her dead body in naked condition. At that time, the elder sister of Ayatu was covering the dead body by cloth. He saw injuries on her neck. The appellant and the deceased were relatives. There was an affair between the deceased and the appellant which were objected by the villagers and village meeting was also convened, but they could not understand. A frequent quarrel was also took place between them. On the date of incident, both the children of the deceased have informed that the appellant came to their house having Danda in his hand and assaulted their mother. He lodged the merg intimation (exhibit P-5) and FIR (exhibit P-6). He 10 also proved the spot map (exhibit P-7) and body identification panchnama (exhibit P-8). When this witness has been declared hostile and cross examined by the prosecution, he admitted that a day before the date of incident, the appellant assaulted the deceased and then the deceased had gone to the house of Somdu along with her two children and take shelter there. ******* In cross examination, he stated that both the children of the deceased have informed him that the appellant came to their house having Danda in his hand and if the appellant came to her house having Danda in his hand is not there in his Police Statement/Exhibit D-1, he could not tell the reason. He also stated that the appellant has given threatening to the deceased with dire consequences and if it is also not there in his Police Statement/Exhibit De1, he could not tell the reason. He further admitted that after the death of the deceased Mase, her both the two children are residing with him. On the date of incident, when he had gone to the house of the deceased, her son Abhishek and daughter Anita has informed about the incident. He also proved the fact that there was affair between the appellant and the deceased and village meeting was called 1-2 times in the village. ******* From the evidence of this witness, no benefit can be extended to the defence as he was being informed about the incident by PW-4, the son of the deceased that on the date of incident, the appellant came to their house and stayed in the night and in the next morning, the deceased found dead in her house in naked condition. 11 15. PW-7/Smt. Susheela is also a witness to the inquest/Exhibit P-9 and she duly proved the same. She also proved the affair between the appellant and the deceased and village meeting. So far as the incident is concerned, she came to know about the incident from the children of the deceased and her evidence is reliable only to that extent of the motive part. 16. PW-8/Nannu Poyam is also one of the witnesses to the inquest. He also proved the inquest (exhibit P-9) and he came to know about the incident that the appellant committed murder of the deceased from the sister of Ayatu. 17. PW-9 is another witness to the inquest. He too has proved the inquest (exhibit P-9). 18. Close scrutiny of the evidence makes it clear that the appellant and the deceased were having affair with each other, which were objected by the villagers due to their relation as aunt and nephew. There was frequent quarrel between them and the appellant used to beat the deceased occasionally. 1-2 days prior to the date of incident also he came to her house and beaten her. 19. PW-4, the son of the deceased used to go to his neighbor's house whenever the appellant came to their house and quarreling with their mother. On the date of incident also the appellant came to the house of the deceased and raising quarrel. At that time PW-4 left his house and went to the house of his neighbor Somdu and in the next morning when he returned back to his house he saw that his mother is lying dead and then he informed the incident to the persons of the 12 vicinity. The appellant has not explained as to how the dead body of the deceased was found in injured condition in his presence. 20. In the case of Balvir Singh v. State of Uttarakhand, (2023) Live Law (SC) 861 the Hon’ble Supreme Court in Para 33 and 34 has held as under: “33. Section 106 of the Evidence Act, 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. Illustration (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.(b) A is charged with travelling on a railway without a ticket, The burden of proving that he had a ticket is on him. 34. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word "especially" means facts that are pre-eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 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 the facts which are, "especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience". 13 21. From the evidence, it has been proved that the appellant was there with the deceased on the date of incident, but in the next morning the dead body of the deceased was found in her house and appellant has absconded. He was having motive to commit murder of the deceased. All these goes to show and established that the appellant is guilty for the commission of the murder of the deceased. From the evidence of the witnesses as well as medical evidence, the prosecution is able to prove the guilt of the appellant that he committed the murder of the deceased by compression of her neck, which leads to her homicidal death. Therefore, we do not find any reason to differ with the finding recorded by the learned trial Court and hereby uphold the conviction and sentence awarded by the learned trial Court. 22. The appeal filed by the appellant is devoid of merits, liable to be and is hereby dismissed. The appellant shall undergo the entire sentence awarded by the learned trial Court. 23. 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. 14 24. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice ved