1 2025:CGHC:1716-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 637 of 2019 1. Ramkumar Sahu, aged about 51 years, S/o Santan Sahu, R/o Village Karari, Police Station Masturi, District - Bilaspur, Chhattisgarh 2. Puni Bai, aged about 50 years, W/o Ramkumar Sahu, R/o Village Karari, Police Station Masturi, District - Bilaspur, Chhattisgarh 3. Jagdish Sahu, aged about 25 years, S/o Ramkumar Sahu, R/o Village Karari, Police Station Masturi, District - Bilaspur, Chhattisgarh ... Appellants versus State of Chhattisgarh, Through: The Police Station Masturi District- Bilaspur, Chhattisgarh ... Respondent For Appellants : Ms. Smita Jha, Advocate For Respondent/State : Mr. Rahul Tamaskar, Govt. Advocate (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Digitally signed by BHOLA NATH KHATAI Date: 2025.01.16 10:49:07 +0530 2 Judgment on Board (10.01.2025) Sanjay K. Agrawal, J. 1. These three appellants herein, who are the father-in-law, mother-in-law and husband of the deceased, have jointly preferred this criminal appeal under Section 374(2) of Cr.P.C. calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 21.02.2019, passed by 9th Additional Sessions Judge, Bilaspur (C.G.) in Sessions Trial No.98/2017, whereby the appellants have been convicted for offence punishable under Sections 302/34 and 201/34 of IPC and sentenced in the following manner :- Conviction Sentence U/s 302/34 of IPC Life Imprisonment and fine of Rs.10,000, in default of fine, 6 months additional R.I. U/s 201/34 of IPC R.I. for 3 years and fine of Rs.3,000, in default of fine, 2 months additional R.I. 2. The case of the prosecution, in short, is that on 20.05.2017 at about 07:30 a.m., in village Karari, Police Station Masturi, District – Bilaspur, all the three appellants, in furtherance of their common intention, throttled Padmini Sahu (now deceased) i.e. the wife of appellant No.3 and daughter-in-law of appellant Nos. 1 & 2 to death and in order to screen themselves from the offence, burned the dead body in the toilet room, thereby they committed the aforesaid offence. The matter was reported to the Police by Appellant No.1 3 himself i.e. the father-in-law of the deceased, based on which, Morgue Intimation was recorded vide Ex.P-28 and FIR was registered vide Ex.P-20. Inquest was conducted vide Ex.P-4 and the dead body was sent for postmortem examination which was conducted by Dr. Parul Jogi (PW-8), who proved the post-mortem report Ex.P-11, according to which, the cause of death was throttling, mode of death was asphyxia and nature of death was homicidal. After completion of investigation, the appellants were charge- sheeted for the aforesaid offence before the jurisdictional criminal court and the case was ultimately committed to the Sessions Court for trial and its disposal in accordance with law. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 18 witnesses and exhibited 28 documents. The statements of accused/appellants were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. The accused-appellants in support of their defence have examined one witness and exhibited 6 documents. 4. Learned trial Court, after appreciation of the oral and documentary evidence available on record, convicted and sentenced the appellants as mentioned in the opening para of this judgment against which the present appeal has been preferred by the appellants questioning the legality, validity and correctness of the impugned judgment. 5. Ms. Smita Jha, learned counsel for the appellants, would submit that the trial Court is absolutely unjustified in convicting the three appellants for offence punishable under 4 Sections 302/34 of IPC as the theory of last seen together has not been established. She submits that the the trial Court by misreading the statements of Lagan Bai (PW-15), Laxman Prasad Yadav (PW-16) and Smt. Savitri Yadav (PW- 18) proceeded to hold that the appellants were present on the date and time of offence in the house and thereby wrongly applied Section 106 of the Evidence Act to convict the appellants for the aforesaid offence. She submits that the prosecution has failed to prove the offence beyond reasonable doubt and the appellants are liable to be acquitted of the said charges on the basis of benefit of doubt. 6. Mr. Rahul Tamaskar, learned State counsel, supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt and therefore, the conviction of the appellants for offence under Sections 302/34 & 201 of I.P.C. is well merited, as such, the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 8. The first and foremost question for consideration as to whether the death of deceased Padmini Sahu was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-11) proved by Dr. Parul Jogi (PW-8), according to which, the cause of death was throttling, mode of death was asphyxia and nature of death was homicidal, which in our considered opinion 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. 5 9. The conviction of the appellants is based on the application of Section 106 of the Indian Evidence Act and on the statements of witnesses Lagan Bai (PW-15), Laxman Prasad Yadav (PW-16) and Smt. Savitri Yadav (PW-18) i.e. wife of Laxman Prasad Yadav. 10. Now, the question for consideration is as to whether Section 106 of the Indian Evidence Act would be applicable or not? 11. At this stage, it would be appropriate to quote Section 106 of the Evidence Act, which states as under:- “106. Burden of proving fact especially within knowledge.—When any fact is espe- cially within the knowledge of any person, the burden of proving that fact is upon him.” 12. In the recent decision of the Hon’ble Supreme Court in the case of Manharan Rajwade v. State of Chhattisgarh1, the supreme Court has clearly held that for invoking Section 106 of the Evidence Act, the prosecution ought to have discharged the burden on it by adducing cogent evidence to prove the appellants’ presence at the relevant time in his house and in paragraphs 7 to 10 held as under: “7. For invoking Section 106 of the Evidence Act, the prosecution ought to have discharged the burden on it by adducing cogent evidence to prove the appellant's presence at the relevant time in his house. In this case, going by the evidence of PW-1, the deceased had already died before 5:00 p.m., and the said witness stated that the appellant came back home at 7:00 p.m. There is no evidence to prove the theory of the last seen together. Therefore, the prosecution has not discharged the burden on it to prove 1 MANU/SC/0803/2024 6 that the appellant was last seen together with the deceased wife. Thus, Section 106 of the Evidence Act cannot be invoked to shift the burden on the appellant. 8. Even the appellant's answer given to question no.27, if taken in its entirety, does not support the prosecution. The appellant vaguely stated that he came back around 4:00-5:00 p.m. when PW-1 and PW-2 were in the house and told him that the deceased was not talking and moving. Thus, he reached home after the death of his wife. The allegation was that the death was caused due to strangulation by the appellant. 9. Therefore, the prosecution has miserably failed to prove the only circumstance it relied upon, namely, that the appellant and the deceased were last seen together. Therefore, the prosecution has failed to bring home the charge of the offence of murder punishable under Section 302 of the IPC. 10. Hence, the impugned judgments and orders are set aside, and the appellant is acquitted of the offence alleged against him. The appellant shall be forthwith set at liberty unless his detention is required in any other case.” 13. Reverting to the facts of the present case, in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that in para-42 of the impugned judgment, the trial Court has recorded a finding on the basis of the statement of Lagan Bai (PW-15), Laxman Prasad Yadav (PW-16) and Smt. Savitri Yadav (PW-18) i.e. wife of Laxman Prasad Yadav that it has been proved that the appellants were present at the relevant time at the place of occurrence and the appellants have not given any satisfactory explanation in their statement recorded under Section 313 CrPC as to how and what circumstances Padmini Sahu died. Thereafter, applying Section 106 of the 7 Indian Evidence Act the trial Court proceeded to convict the appellants for the aforesaid offences. 14. In order to examine the correctness of the findings recorded by the trial Court it would be appropriate to look into the statements of the three witnesses relied upon by it. First of all, we take the statement of Lagan Bai (PW-15) who has stated that she was informed by Savitri Yadav (PW-18) that something was burning in the house (Kothar) of Appellant No.1 Ramkumar Sahu. Then she went inside the Kothar of Appellant No.1 and saw the deceased burning inside the bathroom. At that time, Appellant No.1 was present there and extinguishing the fire. The daughter of Appellant No.1 Ishwari Sahu was also present there who ran to call Appellant No.2 Puni Bai who at that time had gone to someone else's house to get a plate. In her cross- examination, she has stated that when she shouted for help, appellant No.1 came out of the Kothar and started to extinguish the fire. She has stated that she did not know where the other accused were. As such, from the statement of Lagan Bai (PW-15) it is established that only Appellant No.1 Ramkumar Sahu was present nearby the courtyard (Kothar) and on her calling for help, he came to the rescue of the deceased and extinguished the fire. This witness did not say anything about the presence of appellant No.3. As such, except the presence of Appellant No.1 on the date and time of offence in the house, the presence of appellant Nos. 2 & 3 is not established at all from the statement of Lagan Bai (PW-15). 15. Coming to the statement of Laxman Prasad Yadav (PW-16), in para-1, he has only stated that he saw one of the appellants going from his house towards the street on his 8 motorcycle. In paragraph-4, this witness has stated that a lot of people had gathered at the place of occurrence. At that time, the dead body of deceased was lying there and Appellant no.1 Ram Kumar, his wife Appellant No.2 Punni Bai and their younger daughter Ishwari Bai were present and appellant No.3 Jagdish came about half an hour after the incident. As such, the presence of Appellant Nos.1 & 2 in the house has been stated only by witness Laxman Prasad Yadav (PW-16) but from his statement, the presence of Appellant No.3 is not established. 16. Now, coming to the statement of Savitri Yadav (PW-18) wife of Laxman Prasad Yadav PW-16, she has stated before the Court that she was informed by her husband Laxman Prasad Yadav (PW-16) that septic tank of the appellants was on fire. Then, she called Lagan Bai (PW-15) and went to the house of the appellants. They went inside the house to see the incident where Appellant No.1 Ramkumar was present. She has stated that the fire was so intense that nothing was visible and even the dead body was not visible. In her cross- examination, she has clearly stated that Appellant No.2 was not present in the house and she had gone to someone’s house in the village. As such, except the presence of Appellant No.1 in the house, the presence of appellant Nos. 2 & 3 is not established from the statement of Savitri Yadav (PW-18). From the statement of these three witnesses, the presence of all the accused persons prior to the incident and immediately after the incident is not established beyond reasonable doubt to attract Section 106 of the Evidence Act. As such, the prosecution has miserably failed to prove the only circumstance relied upon that the appellants and the deceased were last seen together in the house. 9 17. In that view of the matter, the prosecution has failed to bring home the offence against the appellants beyond reasonable doubt and therefore, we are unable to sustain the conviction and sentence imposed upon them under Sections 302/34 and 201/34 of IPC. 18. Accordingly, the impugned judgment dated 21.2.2019 passed by the Trial Court convicting and sentencing the appellants for the offence under Sections 302/34 and 201/34 of IPC, is hereby set aside/quashed and the appellants are acquitted from the said offence on the basis of benefit of doubt. 19. Appellant Nos.1 & 3 are reported to be in jail. They be released from jail forthwith, if their detention is not required in connection with any other offence. Appellant No. 2 is on bail. She need not surrender, however, her bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437A of the CrPC. 20. This criminal appeal, accordingly, stands allowed. 21. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned trial Court for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein Appellant Nos. 1 & 3 are suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Khatai