1 2025:CGHC:10758-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 903 of 2023 Ramchand Nishad S/o Jhadhuram Nishad Aged About 33 Years R/o Dhindhol Police Station Lormi, District Mungeli Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House OfÏcer, Police Station Lormi District Mungeli Chhattisgarh ... Respondent For Petitioner : Mr. Aditya Tiwari, Advocate. For Respondent : Mr. Hariom Rai, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha , Chief Justice 05/0 3 / 202 5 1. This criminal appeal preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, the Cr.P.C.) is directed against the impugned judgment of conviction and order of sentence dated 02.03.2023 passed by the learned 1st Additional Sessions Judge, Mungeli, District Mungeli, in Sessions Trial No. 65 of 2021 by which the appellant has been convicted and 2 sentenced as under: Conviction under Section : Sentence 302 of the Indian Penal Code (for short, the IPC) : Life imprisonment with fine of Rs. 2000/-. In default, 1 year rigorous imprisonment (for short, the RI) more. 201 of the IPC : 5 years RI with fine of Rs. 500/-. In default, 3 months RI more. 2. The prosecution case in brief is that the deceased, who is the wife of the appellant and daughter of Seva Ram (PW-1), was married to the appellant in the year 2011 as per social customs and rituals, from their wedlock, a son namely Bhuvaneshwar and a daughter namely Bhuvaneshwari were born. After a year of marriage, the accused used to beat the deceased after drinking alcohol and quarreling with her, regarding which they used to pacify him by holding a social meeting in village Dindol. After the argument, the deceased was living at her parental house with her children. In the year 2018, after holding a social meeting, the deceased was sent to her matrimonial house at Dindol. On 30.11.2020, Radhe Nishad called the deceased's brother Baldev Nishad and told him that his sister/deceased has been burnt by pouring kerosene on her, then Seva Ram went to Nathubabu's house to see the deceased and when asked, the deceased told that the appellant demanded money for drinking liquor. On saying that she did not have it, he started arguing and abusing her and poured kerosene from the bottle on her and lit a matchstick and set her on fire. The deceased's neck, chest, lower part of the waist and both legs were badly burnt. The deceased was taken to 50 Beded Hospital, Lormi for treatment from where after referral, the deceased was taken to CIMS Hospital, Bilaspur for treatment where the deceased died during treatment on 08.12.2020. On the information of Ward Boy, Rupesh Kashyap of CIMS Hospital, Bilaspur, an unnumbered merg intimation (Exhibit P/17) was registered at the Police Chowki, CIMS and the inquest (Exhibit P/3) of the 3 deceased was prepared. The post-mortem of the deceased was conducted at CIMS Hospital, Bilaspur. In the Police Station Lormi, the case was investigated by registering FIR No. 04/2021 (Exhibit P/20) bearing Crime No. 28/2021 for the offence under Section 302 of the Indian Penal Code. The spot map (Exhibit P/5) of the incident was also prepared. The appellant Nishad was taken into custody and his memorandum was recorded under Section 27 of the Evidence Act vide Exhibit P/6. On the basis of the said memorandum, the seizure of the property from the accused, used in the crime was done as per Exhibit P/7. The seized property was sent to the Regional Forensic Science Laboratory Bilaspur vide Exhibit P/22 for chemical testing through the Superintendent of Police, Mungeli. The statement of witness Bhuvneshwar Nishad (PW-3) was recorded under Section 164 of the Cr.P.C. The statements of the other witnesses were also recorded. After complete investigation, when evidence of crime was found against the appellant, he was arrested and charge sheet number bearing 28/2021 for the offences under Section 302, 201 of the IPC was filed before the Judicial Magistrate First Class, Lormi, District Mungeli. 3. After the case was handed over to the Court of Judicial Magistrate, First Class, Link Court, Lormi, District Mungeli, it was registered as Criminal Case No. 253/2021 which was later committed to the Court of Sessions wherein it was registered as Sessions Trial No. 65/2021. When the charges were framed and read out to the appellant under Section 302, 201 of IPC, the appellant/accused denied the crime and prayed for trial. 4. In order to bring home the offence, the prosecution examined as many as 14 witnesses, namely (PW-1) Sevaram , (PW-02) Smt. Duvsia Bai, (PW-03) Bhuvaneshwar Nishad, (PW-04) Baldev Nishad, (PW-05) Dhaneshwari Yadav, (PW-06) Radhelal Nishad, . (PW-07) Shriram Nishad, (PW-08) Ashok Nishad, (PW-09) Shilpa Tirkey Patwari, (PW-10) Dr. Dharmendra Kumar, Medical OfÏcer, (PW-11) Dr. Sahib Singh Dhir, Medical 4 OfÏcer, (PW-12) Dr. Archana Vaishnav, Junior Resident Surgeon, (PW-13) Gulaal Sonwani, Sub Inspector and (PW-14) Alok Subodh Sub Inspector and exhibited as many as 22 exhibits. 5. The statement of the appellant/convict was recorded under Section 313 Cr.P.C. wherein he expressed his ignorance about many questions and some of them were denied as well. He stated that he had been falsely implicated in this case. 6. The learned trial Judge, after considering the statement of witnesses and evidence available on record, convicted and sentenced the appellant/ accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict. 7. Mr. Aditya Tiwari, learned counsel for the appellant submits that the learned trial Court has erred in holding the appellant guilty of the offences under Section 302 and 201 of the IPC. The prosecution has failed to prove the guilt of the appellant beyond all reasonable doubt. There is no eye witness to the incident and the cases rests upon circumstantial evidence. The prosecution could not establish that the appellant was present at the time of incident. The motive could not be proved as well. There are omissions and contradictions in the statement of the prosecution witnesses. Even no dying declaration has been recorded by the police, though the deceased was alive for about 8 days after the incident. There is no criminal antecedents of the appellant and the appellant was entitled to be given the benefit of doubt as the prosecution has failed to prove its case beyond reasonable doubt. 8. On the other hand, Mr. Hariom Rai, learned Panel Lawyer appearing for the State/respondents submits that the learned trial Court has committed no illegality by convicting and sentencing the appellant/accused which is based on cogent reasons and as such, no interference is warranted by 5 this Hon'ble Court and the present appeal deserves to be dismissed. 9. 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. 10. It is not in dispute that the deceased died of burn injuries sustained by her on 30.11.2020 at about 9:30 a.m. Exhibit P/14, which is the admission sheet of the deceased shows that she had sustained 40% burn injuries on the front side of the body and 5% burn injuries on the back side of the body. She was admitted in CIMS, Bilaspur on 30.11.2020 and after a period of eight days, she succumbed to the injuries on 08.12.2020. The postmortem of the body was conducted on 08.12.2020 at about 12:15 p.m. wherein Dr. Dharmendra Kumar has found the burn injuries to be superficial to deep about 20 to 25% and the cause of death was opined to be cardio-respiratory failure due to shock as a result of burn injuries and its complication. 11. Though the Police had written to the Executive Magistrate, Bilaspur for recording of the dying declaration of the deceased but the Doctor had opined that since she was not in a fit state of mind, her statement could not be recorded, which is evident from Exhibit P/18. 12. The admitted position in this case is that the deceased is the wife of the convict/appellant. As they both had some dispute, the deceased was living with her father alongwith her children. Later on, on the assurance given by the appellant, she returned back to her matrimonial house. Sewaram (PW-1) is the father of the deceased. He has stated that the appellant used to torture his daughter because of which she had left her matrimonial house and was living with him. On the date of incident, he was informed by Radhelal Nishad (PW-6) that her daughter had burnt. Smt. Duvasiya Bai (PW-2) is the mother of the deceased. She has also deposed in similar fashion as that of Sewaram. She 6 stated that whenever the deceased used to come to their house, she used to tell that the appellant used to assault her after consuming liquor and also used to demand money for consuming liquor. 13. Bhuneshwar Nishad (PW-3) is the child witness aged about 6 years. He has deposed that on the date of incident, his father i.e. the appellant was demanding money from her mother i.e. the deceased and when the deceased refused to give, the appellant set her on fire. He stated that he had seen the appellant pouring kerosene and setting the deceased on fire. After the said incident, the appellant made him go away from that place. The uncle and aunt of this witness came and poured water on the deceased and thereafter took the deceased to the Hospital. Baldev Nishad (PW-4) is the brother-in-law of the appellant and brother of the deceased. He stated that the appellant used to quarrel with the deceased after consuming liquor and used to demand money fro liquor. After having come to know about the incident, he alongwith his father went to village Dindol where they found the deceased in a burnt condition and her entire clothes were burnt. She was taken to the hospital at Lormi. This witness further states that the deceased was admitted in CIMS, Bilaspur for about eight days and whenever she used to gain consciousness, he asked as to how the incident happened upon which the deceased informed him that the appellant was demanding money for consuming liquor and on denial, the appelant committed the incident. Shriram Nishad (PW-7) is also the brother of the deceased who stated that when the deceased was taken to the hospital at Lormi, he asked the deceased as to how the incident happened, upon which the deceased gave the same response as given to Baldev Nishad. Ashok Nishad (PW-8) is the cousin of the deceased and he has also made similar deposition before the learned trial Court. 14. Another important witness is Radhelal Nishad (PW-6) who had made a phone call to the brother of the deceased and informed about the 7 incident. This witness states that he is the uncle of the appellant. On the date of incident, he met the appellant in an inebriated condition near Mahavir Chowra and he found that smell of kerosene was coming from his clothes. On asking, the appellant informed this witness that he had poured kerosene on her wife and set her ablaze. He is also a witness to the memorandum statement of the appellant as well as seizure made by the police on the basis of the said memorandum. 15. In the memorandum statement (Exhibit P/6), the appellant has stated that on the date of incident, he was demanding money from the deceased for consuming liquor. When the deceased did not gave him the money, he became enraged and took out the kerosene kept in the attic and poured over the deceased and set her ablaze with a matchstick. After the incident, he had concealed the burnt clothes of her wife and the clothes worn by him which was seized by the police vide Exhibit P/7. 16. The appellant has not discharge his initial burden of proving the fact that was especially within his knowledge. The appellant ought to have explained as to how the deceased got burnt in his house. 17. 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.” 18. 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 8 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. 19. In the matter of Shambhu Nath Mehra v. The State of Ajmer1, their Lordships of the 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 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 1 AIR 1956 SC 404 9 exceptional class of case, the burden is on the prosecution and never shifts. 20. The decision of the Supreme Court in 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 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 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.” 21. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab3, while considering the provisions contained in Sections 103 and 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, 2 (2021) 10 SCC 725 3 AIR 1956 SC 460 10 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. 22. The principle of law laid down by their Lordships of the Supreme Court in 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. 23. In the present case, there was a motive for the appellant to commit murder of the deceased as he was a habitual drunkard and used to quarrel with the deceased when the deceased used to deny giving him money for consuming liquor. Because of his such habit, the deceased had earlier left her matrimonial house for a long time but on being pacified, she returned back to the house of the appellant. The appellant has not given any explanation as to how the deceased got burnt on the contrary, the evidence of the prosecution witnesses goes to suggest that it was the appellant who had committed the offence in question. The son of the appellant has seen the incident on his own and there is no reason as to why the son would depose against his own father. The appellant has not given any explanation or any suggestion as to why the prosecution witnesses had deposed against him. 24. In the light of aforesaid discussion, we are inclined to endorse the 4 AIR 1974 SC 778 11 conclusion arrived at by the learned trial Court convicting the appellant on the basis of evidence adduced by the prosecution witnesses. Therefore, conviction of the appellant for the offence under Section 302 and Section 201 of the IPC as well as the sentence imposed upon him by the learned trial Court is well merited and does not call for any interference by this Court. 25. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed. 26. The appellant is stated to be in jail. He shall serve out the remaining part of the sentence as has been awarded to him by the learned trial Court. 27. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentences 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. 28. Let a certified copy of this judgment alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) JUDGE CHIEF JUSTICE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.03.11 11:22:58 +0530