1 2025:CGHC:10483-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 558 of 2021 Jagdish Ram Pando S/o Jila Ram Pando, Aged About 30 Years R/o Keshavopur Pandopara, Police Station Ramanujnagar, District - Surajpur, Chhattisgarh. ... Appellant(s) versus State Of Chhattisgarh, Through Officer Incharge, Police Station Ramanujnagar, District - Surajpur, Chhattisgarh., District : Surajpur, Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Gajendra Kumar Sahu, Advocate For Respondent(s) : Mr. Nitansh Jaiswal, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 04.03.2025 1. Heard Mr. Gajendra Kumar Sahu, learned counsel for the appellant. Also heard Mr. Nitansh Jaiswal, learned Panel Lawyer, appearing for the respondent/State. MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.03.05 10:37:05 +0530 2 2. This criminal appeal filed by the appellant/accused 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 08.03.2021 passed by the learned Sessions Judge, Surajpur, District- Surajpur (C.G.) in Session Trial No. 58/2018 by which the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life with fine amount of Rs. 500/-, in default of payment of fine additional rigorous imprisonment for 01 month and under Section 201 of the Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for 05 years with fine amount of Rs. 500/-, in default of payment of fine additional rigorous imprisonment for 01 month. 3. Case of the prosecution, in brief, is that on 01.05.2018, Shankar Lal Pando got a rural death report registered with the Ramanujnagar police to the effect that he was on duty at Chhindiya Nursery at night, Sukh Singh was also with him. At around 10-11 pm, Gangaram and Mangal Pando came to him and told him that Jagdish Pando had beaten his wife Sangeeta Pando to death. When he went to Jagdish Pando's house, he saw Sangeeta's body covered with a cloth in the courtyard, injuries were visible on her head and skull and blood stains were visible inside the house as well. It seemed that Jagdish had washed the blood stains by pouring water on them. Jagdish Pando used to beat his wife Sangeeta Pando everyday over domestic issues after drinking alcohol. He used to beat her and Sangeeta Pando died due to murder by her husband Jagdish Pando by beating her. The above information was registered as Merg No. 17/2018. 3 4. On receipt of inquest information regarding the death of the deceased, a rural inquest was held on the spot and after preparing the body panchnama, the body was sent for postmortem to CHC Ramanujnagar, for conducting post mortem, wherein postmortem over the dead body of the deceased was conducted by Dr. H.P. Singh (PW-3) vide Ex.P-10, who found the following external injuries:- (I) triangular injury of 2 x 2 x 1 cm on her left temple and a cut injury of 3 x 2 x 1 cm on her forehead. (II) There was a 3 x 2 x 2 cm injury near his right upper jaw and profuse bleeding from his right ear. (III) A bruised and sunken wound measuring 8 x 5 x 1 cm was found on his right chest and 6 x 5 x 1 cm on his left chest. (IV) A 5 x 2 x 1 cm bruised wound was present on his right waist towards the arm and a 5 x 2 x 1 cm bruised wound on his left shoulder. 5. Dr. H.P. Singh (PW-3) vide Ex.P-10, who found the following internal injuries:- (I) There was bleeding from the left side of the brain in the skull and spinal cord, which had accumulated in the middle part of the brain. (II) Five rib bones of the right side of his chest, No. 3, 4, 5, 6 and 7 were broken and three rib bones of the left side, No. 2, 3 and 4 were broken. 4 (III) Her right and left lungs were punctured and the left and right chambers of the heart were empty and shrunken. (IV) The diaphragm and intestinal membrane were shrunken, foam was coming out of the mouth, there was half-digested food and gas in the stomach. (V) Half-digested food and faecal matter was present in the small and large intestines. The liver and spleen were in a shrunken state. The urinary bladder was empty and the genitals were healthy. He opined that the deceased died of heart attack caused by excessive bleeding and the nature of death was homicidal. 6. On the basis of which First Information Report (Ex.P.-23) was registered against the accused and he was taken into custody and his memorandum statement was recorded under Ex.P.-08 and the weapon used in the incident was seized from the place mentioned by the accused as per Ex.P.-09. Blood stained and plain soil was also seized from the scene of crime. The sari worn by the deceased was seized as per Ex.P.- 13 after the postmortem when presented by the sweeper of CHC Ramanujnagar. After which, the accused was arrested and his family was informed. The seized items were sent to the doctor for interrogation, on which, it was reported that the injury sustained by the deceased could have been caused by the said weapon. Spot maps of the scene of crime were prepared by the police and the patwari. Statements of witnesses were recorded. The seized items were sent to the Forensic Science 5 Laboratory, Ambikapur for FSL investigation through the ofÏce of the Superintendent of Police. 7. After investigation, the charge-sheet was filed by the sub-ordinate case, where from, the case was received on transfer to the Court of learned Additional Sessions Judge, Surajpur, District- Surajpur (C.G.), wherein the charge mentioned above was framed against the accused, which the accused rejected and demanded trial. 8. In order to bring home the offence, the prosecution examined as many as 15 witnesses and exhibited 24 documents. On examination of the accused under Section 313 of Criminal Procedure Code, he denied the charges levelled by the prosecution and pleaded that he was innocent and had been falsely implicated. 9. The learned trial Court, upon appreciation of oral and documentary evidence on record opining that it is the appellant who has committed the murder of his wife, convicted and sentenced him under Section 302 and Section 201 of the IPC, against which the instant appeal under Section 374(2) of the Cr.P.C. has been preferred. 10. Mr. Ganjendra Kumar Sahu, learned counsel for the appellant vehemently argued that 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 completed to each other. He further submits that the impugned judgment of conviction and sentence is illegal & contrary to law and hence liable to be set-aside. The Appellant has been falsely trapped in the present case based on the balled and bare suspicion. Not a single iota of evidence available on 6 record to show that the Appellant had committed the murder of his wife. The learned trial court has discarded the evidence of daughter of deceased Ku. Anita (P.W.6) has turned hostile where she had deposed that the day when her mother died, her father was not present in the house and her father had done nothing to deceased. The witness to memorandum namely Gangaram (P.W.2) had denied the seizure of weapon in front of him and in cross-examination this witness had admitted the he had not given any statement to police. The ocular evidence does not support the medical evidence. The prosecution witnesses are tutored witnesses and on the basis of such evidence no conviction can be passed. The quantum of sentence is too harsh looking to the facts and circumstances of the case. There is contradictions and omissions in the deposition of prosecution witnesses. Thus looking to the entire evidence available on record, there is not a single iota of evidence to show that the appellant had committed murder or involved in this crime. 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 for benefit of doubt. 11. On the other hand, learned Panel Lawyer, appearing for the respondent/State, supports the impugned judgment and submits that the statement of the prosecution witnesses clearly proved that, the deceased had been murdered by the accused/present appellant, as it has also been observed by the learned trial Court that, as per the postmortem report, (PW/3) Dr. H.P. Singh/Medical OfÏcer has clearly opined that, that the deceased died of heart attack caused by excessive bleeding and the 7 nature of death was homicidal. The learned Trial Court has appreciated the entire evidence available on record including the deposition of witnesses and thereafter, arrived at the finding of guilt of the appellant, which is supported by the credible and cogent evidences, as the learned trial Court has specifically observed that, from the medical evidence and FSL report, it is clearly proved the death of the deceased is homicidal in nature. Thus, looking to the gravity of the offence and the quality of the evidences, there is no reason for showing any leniency to the present appellant, thus, the trial Court has rightly convicted the appellant for the offence punishable under Section 302 of the IPC 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 learned trial Court with utmost circumspection. 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 to be homicidal in nature ? 15. The trial Court, relying upon the statement of Dr. H.P. Singh (PW/3), who has conducted postmortem on the body of deceased, vide Ex.P/10, has clearly come to the conclusion that the deceased died of heart attack caused by excessive bleeding and the 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 8 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/10) of Dr. H.P. Singh (PW/3), 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. The question for consideration 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 9 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 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 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 1 AIR 1956 SC 404 10 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 exceptional class of case, the burden is on the prosecution and never shifts. 21. 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 2 (2021) 10 SCC 725 11 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.” 22. Similarly, the 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 3 AIR 1956 SC 460 12 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 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. 24. In the present case, deceased dies of heart attack caused by excessive bleeding and the nature of death being homicidal has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Dr. H.P. Singh (PW/3) and the postmortem report (Ex.P/10) 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. H.P. Singh (PW/3), Jawahar Pando (PW-12), Shankar Lal (PW-01), Ganga Ram (PW-2), Vijay Singh (PW-06), Banjari (PW-10) and Ramendra Singh (PW-13). 26. Jawahar Pando (PW-12), the deceased's maternal uncle has expressed his recognition of the accused and the deceased and has said that the deceased is his niece and has stated that on the day of the 4 AIR 1974 SC 778 13 incident he had gone to Chirmiri for work, when his wife called him and told him that the accused and Sangeeta had a fight after drinking alcohol, in which Sangeeta died. The accused has beaten his wife to death. When he went to the accused's house the next day at 10-11 am, he saw that the deceased's body was lying in the courtyard, there were injuries on her head and body in many places due to hitting with a stick, there was not a single piece of clothing on her body. When he went there, the accused was not at home. Before this incident, the accused has gone to jail many times. The accused had washed the inside of his house and the shade with water. The villagers caught the accused and brought him to the police station. The accused had told him that he had hidden the stick and the bow in the bushes outside the house and in the Ghorana Tatri and that he had also hidden the shovel in the bushes and he would go and recover them. On the basis of which, the police recorded the memorandum statement (Ex.P.-08) and thereafter the accused got the said goods seized in his presence. 27. Shankar Lal (PW-01), who is from the same village as the deceased and the accused, has stated in his statement that on the date of the incident he was on duty at Chhindiya Nursery, where he works as a watchman. At around 11-12 in the night, Ganga Ram and Mangal of the village came to the nursery and informed that accused Jagdish Pando has killed his wife. After which he went to the house of the accused along with Ganga Ram and Mangal and saw that the body of deceased Sangeeta was lying in the courtyard covered in a blanket. The police had arrived there at that time. The deceased had injuries on her head, front and back. When he went inside their house and looked, there was a bed laid in the 14 room. He further deposed the floor of the room inside the house of the deceased was wet with water. They felt that the accused had washed the blood stains on the floor with water and also washed the clothes of the deceased with water. The accused used to fight and beat his wife after drinking alcohol. The witness also told that in front of him, blood-soaked and plain soil was confiscated by the police and separate maps were made by the police and the patwari. 28. Ganga Ram (PW-2) has stated that on the date of the incident, when he was at home at 07:00, at that time accused Jagdish Pando, Mangal Pando and Shiv came to his house. The accused told that he and his wife went to sleep after drinking alcohol, after some time when he woke her up for food, she did not wake up and when he touched her, she was dead. The accused asked him to call the Sarpanch, then he called Sarpanch Vijay Singh and told him that the accused's wife had died, after which the accused left, after which he and Mangal both went to Sarpanch Vijay Singh's house, during this time the police had come there. When they went to the accused's house with the police, the accused was not at home, there the dead body was lying in the courtyard and there was an injury on her head and blood was spilled. The next day when he went to the accused's house, the blood spilled in the courtyard of the accused was cleaned with a cloth. Panchnama of the dead body was made in front of the witness and it was sent for postmortem. The accused had told the police in his presence that he had hidden the stick and the bow in the garden and in the Ghorana Tatri and that he had also kept the shovel in the garden and he would get it recovered. The accused had signed the said memorandum statement, after which he had also signed. 15 29. Vijay Singh (PW-06) who is the husband of the Sarpanch of village Keshavpur and is employed in the Health Department, stated that on the date of the incident Mangal Ram called him and informed that Jagdish has come to meet him and Jagdish's wife has died, then he asked Mangal Ram to go and see what has happened, after which Mangal Ram, Ganga Ram went to the house of the accused and then called again and informed that Jagdish's wife has died. Then he reached there and in the evening he called Ramanuj Nagar Police and informed them, after which when the police came, they were standing with four-five policemen and some people of the locality, went to the house of the accused, where the mother and children of the accused were there, the wife of the accused was lying dead in the courtyard and her body was covered with a shawl, blood was coming out of her head, there were injuries and blood on her face and head, her whole body was soaked in water. The policeman went to the room inside the house of the accused, the daughter of the deceased told him that her father had bathed her mother in the evening. People present there were discussing that blood had fallen in the room. 30. Banjari (PW-10), deceased's father told that his brother came to his house and told him that his daughter has been killed by his son-in-law, then he went to the house of the accused and saw that his daughter's body was kept in the house of his son-in-law. There were injury marks on her head, legs, ribs, where the police came and made a Panchnama of the body and after inspecting the whole body, while doing the Panchnama proceedings, took her thumb impression and sent the body for post- mortem. 31. Ms. Anita (PW-05), minor daughter of the deceased who is 06 years 16 old on the date of taking evidence, told that on the day her mother died, her father was not with her mother, she was with her mother that day. Her mother died in the hospital and her father did not do anything to her mother. She does not know where her father was at the time her mother died. According to the statement given by the said child witness to the police, she has denied giving a statement to the police regarding her father beating her mother and killing her and washing her mother's body and the crime scene with water. In cross-examination, she has also denied the defense's question that her mother had fallen into the drain. 32. The other investigating ofÏcer of the case, Inspector Ramendra Singh (PW-13), registered the memorandum statement of the accused in the case (Ex.P.-08), and when the accused got the property seized, the accused was arrested and his property was seized as per Ex.P.-09. Information was given to her family members and she was sent to CHC Ramanujnagar for query of the seized bow and spade's shaft and the doctor sealed the deceased's sari in the case and sent it through the sweeper, which was seized by him. A letter was sent to the Tehsildar to prepare the map of the scene of incident, on the basis of which the map of the scene of incident could be prepared by the Patwari and the seized items were sent to the Forensic Science Laboratory Ambikapur for FSL investigation. He also recorded the statement of the witnesses of the case, Shankar Lal, Gangaram, Vijay Singh, Jawahar Pando, Mangal Say, Anita and Sukh Singh. 33. Dr. H.P. Singh (PW/3), who conducted the postmortem of the deceased vide Ex.P/10 while presenting the weapons used at the time of death of the deceased, i.e. bow and spade handle, it was asked whether 17 the injuries on the head and body of the deceased could have been caused by the said weapons. On examination, he found that the handle of the spade was 79 cm long and 13 cm in circumference, made of hard wood and the bow was 119 cm long and 9 cm wide, which was broken, the other part of which was 32 cm long and made of wood. The witness has stated in his opinion that the injuries on the body of the deceased could have been caused by the handle of the said spade and bow, which could have caused her death, regarding which he had given a query report (Ex.P.-11). 34. 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? 35. In this regard, the findings of the trial Court is that the deceased is the wife of the accused/appellant and from the statements of Jawahar Pando (PW-12), Shankar Lal (PW-01), Ganga Ram (PW-2), it has come to knowledge that the accused often used to quarrel and beat the deceased. Further, the incident had taken place inside the house and at that time, the deceased and the accused/appellant were at home where the deceased was killed by the accused/appellant and in his memorandum statement (Ex.P/8), the accused/appellant has also admitted that he had hidden the stick and the bow in the bushes outside the house and in the Ghorana Tatri and that he had also hidden the shovel in the bushes. Also, Dr. H.P. Singh (PW-3), who has conducted the postmortem has opined that the nature of death is homicidal which amply reveal that such an incident of murder had taken place. Thus, there is unbreakable chain of circumstantial evidences against the accused 18 appellant, which clearly indicate the guilt of accused/appellant. 36. 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. on the date of offence, the appellant and the deceased were staying in the same house; and 3. it is the appellant who has murdered his wife by inflicting many injuries on her person. 37. Considering the aforesaid evidence of the witnesses as well as the circumstances and further the fact that the dead body of the deceased was found at her home and deceased and accused/appellant were living together amply shows the incident of murder and thus, the incriminating circumstances proves the involvement of accused/appellant and the accused/appellant has not offered any explanation under Section 313 of the Cr.P.C. and in his memorandum statement (Ex.P/8), he had accepted that he had hidden the stick and the bow in the bushes outside the house and in the Ghorana Tatri and that he had also hidden the shovel in the bushes. Also, from the statements of statements of Jawahar Pando (PW- 12), Shankar Lal (PW-01), Ganga Ram (PW-2), it has come to knowledge that the accused often used to quarrel and beat the deceased. Also, Dr. H.P. Singh (PW-3), who has conducted the postmortem has opined that the nature of death is homicidal which amply reveal that such an incident of murder had taken place. Thus, there is unbreakable chain of circumstantial evidences against the accused appellant, which clearly indicate the guilt of accused/appellant and the circumstances clearly 19 indicate that it was the appellant alone who had committed the murder of the deceased. 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 offence punishable under Section 302 and 201 of the IPC. Thus, we do not find any illegality or irregularity in the findings recorded by the trial Court. 38. For the foregoing reasons, the criminal appeal being devoid of merit and is liable to be and is hereby dismissed. 39. It is stated in the appeal that the appellant is in jail since 03.05.2018, he shall serve out the sentence as ordered by the learned trial Court. 40. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the Appellant is undergoing the jail term, 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 Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Manpreet