1 2025:CGHC:15392-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 591 of 2021 Bhola Singh @ Nan Guddu S/o Jagsai, Aged About 23 Years R/o Village Paradol, Junapara, Police Station Jhagrakhand, District Korea (Chhattisgarh). ... Appellant(s) (In Jail) versus State of Chhattisgarh Through The Station House OfÏcer, Police Station Jhagrakhand, District Korea (Chhattisgarh). ...Respondent(s) For Appellant : Mr. Harishankar Patel, Advocate. For Respondent/State : Mr. S.S. Baghel, Deputy Government Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Arvind Kumar Verma , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 02 .04.2025 1. Heard Mr. Harishankar Patel, learned counsel for the appellant. Also heard Mr. S.S. Baghel, learned Deputy Government Advocate, appearing for the respondent/State. 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 BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.04.07 17:20:01 +0530 2 directed against the impugned judgment of conviction and order of sentence dated 10.03.2021, passed by the learned Second Additional Sessions Judge, Manendragarh, District Korea (C.G.) in Session Trial No.64 of 2016, 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 and fine of Rs. 200/-, in default of payment of fine, 02 months R.I. more. 3. Case of the prosecution, in brief, is that on 22.02.2016, complainant, namely, Pyarelal (PW-7), a resident of Paradol, lodged a report to the Jhagrakhand Police Station that Bholanath Singh had killed his wife, Aarti. Pyarelal (PW-7) stating that Lalan Singh (PW-5), Suresh (PW-14), and Shyam Sundar (PW-8) informed him that Bholanath had committed the crime about an hour and a half earlier. On the basis of above report, Sub-Inspector A.K. Nag (PW-20) registered a FIR (Ex.P/7) for the offence punishable under Section 302 of the IPC and wheels of investigation started. On the same day, A.K. Nag (PW-20) visited the crime scene, sealed the room, and prepared a seal panchnama of place of occurrence (Ex.P/8). The next day, A.K. Nag (PW-20) prepared another panchnama (Ex.P-9) for opening the sealed room. A crime details form (Ex.P/10) of the crime scene was also prepared. 4. During the investigation, it is revealed that Bholanath's father, Jagsai, and grandmother-in-law, Mangli Bai, often quarreled with Aarti 3 and instigated Bhola against her. On the day of the incident, Aarti had a dispute with Mangli Bai over a trivial matter, which led to a physical altercation. Bhola intervened, but Mangli Bai and Jagsai taunted him, calling him his wife's servant. Later, Bhola attacked Aarti with a stone grinder (silauti) and then chopped her neck with a tangi (axe). The memorandum statement (Ex.P/12) of Bhola was recorded in front of witnesses Narendra (PW-11) and Chaitram (PW-12) and at the instance of Bhola, a sharp iron tangi (axe) used in the incident having a bamboo wooden handle attached to it, blood stained on the tangi and the handle, a stone grinder (silauti) stained with blood, light grey colour pant and a white colour full sleeve shirt which had blood stains at many places were seized from him vide Ex.P/13. The seized items were sent to FSL for chemical examination, and the reports (Exs.P/22A, P/33, and P/36) confirmed the presence of human blood on the tangi, silauti, and clothes. Thereafter, the Police arrested Bhola, Mangli Bai, and Jagsai, and prepared arrest memos (Exs.P/16, P/17, and P/18). 5. Dead body of the deceased was sent for postmortem to the Community Health Center, Manendragarh, District Korea (C.G.) where Dr. Archana Kumhre (PW-16) conducted postmortem over the body of the deceased vide Ex.P/20 and found a cut injury near the right jaw, measuring 2 cm x 2.5 cm in depth, up to the skin, a cut injury near the right clavicle, measuring 2 cm x 1 cm in depth, up to the skin, a bruise near the right clavicle, measuring 4 cm x 1 cm x 1 inch in depth, another bruise near the right clavicle, measuring 4 cm x 3 cm x 1 inch in depth, a contusion on the middle part of the forehead, measuring 5 cm x 5 cm, a contusion near the left jaw, measuring 7 cm x 4 cm. The color of the 4 injuries was blue-black. After conducting the postmortem, the Doctor expressed her opinion in the postmortem report vide Ex.P/20A that the death of the deceased was caused due to the injury to the neck, which resulted in cutting of the blood vessels, leading to excessive bleeding and ultimately death. The nature of death was homicidal. 6. Statements of the witnesses were recorded. After due investigation, the Police had filed the charge-sheet against the accused persons before the jurisdictional criminal Court and the case was committed to the Court of Session for trial from where the learned Second Additional Sessions Judge, Manendragarh, District Korea (C.G.) received the case on transfer for trial and for hearing and disposal in accordance with law. 7. The trial Court has framed charges against the accused persons for the offence punishable under Section 302 of the IPC and proceeded on trial. The accused persons abjured the guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated in the present case. But, the prosecution against accused Jagsai has failed to prove the charge under Section 302 of the IPC beyond reasonable doubt. Therefore, accused Jagsai was acquitted by giving the benefit of doubt for the charge under Section 302 of the IPC by the trial Court. 8. In order to bring home the offence, the prosecution examined as many as 26 witnesses and exhibited 37 documents. The appellant/accused examined none in his defence. 9. The trial Court upon appreciation of oral and documentary evidence 5 available on record, by its judgment dated 10.03.2021, convicted the appellant for the offence punishable under Section 302 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 that even if the entire case is taken at its face value, the case would not travel beyond Section 304 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 for benefit of doubt. 11. Per contra, 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 6 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. Archana Kumhre (PW-16), who has conducted postmortem on the body of deceased, vide Ex.P/20, has clearly come to the conclusion that the death of deceased was caused due to the injury to the neck, which resulted in cutting of the blood vessels, leading to excessive bleeding and ultimately death 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 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/20A) of Dr. Archana Kumhre (PW-16) 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 7 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 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 1 AIR 1956 SC 404 8 knowledge of the accused and which he could prove without difÏculty or inconvenience. The Hon’ble 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 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 2 (2021) 10 SCC 725 9 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.” 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 3 AIR 1956 SC 460 10 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. 24. In the present case, death of the deceased was caused due to the injury to the neck, which resulted in cutting of the blood vessels, leading to excessive bleeding and ultimately death and the nature of death was homicidal and 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. Archana Kumhre (PW-16) and the postmortem report (Ex.P/20A) 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. Archana Kumhre (PW-16). 26. Dr. Archana Kumhre (PW-16), who conducted the postmortem of the deceased vide Ex.P/20 found the injuries as stated in paragraph 05 of this appeal and she opined that the death of the deceased was caused 4 AIR 1974 SC 778 11 due to the injury to the neck, which resulted in cutting of the blood vessels, leading to excessive bleeding and ultimately death and the nature of death was homicidal. She further stated that on 01.03.2016, she received a seized tangi (axe) and silauti (stone grinder) from Constable Mithlesh Yadav (PW-17), upon examining the silauti, she found it to be 21 inches long and 15 inches wide, with a bloodstain on it. The injuries mentioned in the postmortem report (Nos. 5 and 6) appeared to have been caused by the silauti. While examining the tangi, she found that its wooden handle had four knots, with a total length of 2 feet 7 inches, including the blade. The blade was 5 inches long and 2 inches wide, with bloodstains on it. The injuries mentioned in the postmortem report (Nos. 1, 2, 3, and 4) appeared to have been caused by the tangi. After the examination, she sealed the silauti and tangi and handed them over to the constable, recommending chemical testing. During cross-examination, she denied the suggestion that the injuries could not have been caused by the silauti and tangi. 27. Sub-Inspector A.K. Nag (PW-20) has confirmed on the basis of evidence supported by Narendra Kumar Paw (PW-11) and Chaitram (PW-12) that on 23.02.2016, he had prepared seizure sheet (Ex.P/13) after being given memorandum statement (Ex.P/12) of accused Bhola and on the basis of memorandum statement, accused Bhola had produced the tangi (axe) kept in his room in his house and the silauti (stone grinder) kept in the room next to his room and the clothes he was wearing at the time of the incident, a grey colour pant, a white colour full sleeve shirt. 28. 28. Lalan Singh (PW-5), has stated in his deposition that when he 12 returned from the pond in the evening, he found his house empty and the lights off. After turning on the lights and opening the door to his room, he noticed that his brother Bholanath's room was closed, but not locked. He opened the door and found his brother's wife, Aarti, lying dead on the floor with blood all over her face and neck injuries. His testimony is corroborated by Smt. Jagotiya (PW-13), who stated in her deposition that the room where Aarti and Bholanath lived was locked from the inside. Despite efforts to open the door, it remained closed. Lalan Singh (PW-5) then kicked the door, breaking the latch, and found Bholanath inside. 29. Considering the evidences of the aforesaid witnesses as well as from the circumstantial evidence and further as the dead body of the deceased was found in the house where the husband & wife i.e. deceased and accused/appellant were living together, which amply shows the incident of murder and thus, the incriminating circumstances prove the involvement of accused/appellant in murdering his wife and the accused/appellant has not offered any explanation under Section 313 of the Cr.P.C. and in his memorandum statement (Ex.P/12), the accused/appellant has also admitted that he has murdered his wife and also it is notable that there was no other member of the family in the house except the appellant and the deceased. The circumstances clearly indicate that it was the appellant alone who had committed the murder of the deceased. Hence, 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 of the IPC. Thus, we do not find any illegality or irregularity in the findings recorded by the trial Court. 13 30. For the foregoing reasons, the criminal appeal being devoid of merit is liable to be and is hereby dismissed. 31. 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. 32. 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. 33. 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/- (Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice Brijmohan