1 2025:CGHC:6631-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 617 of 2021 1 - Kanwar Dewar S/o Bhangi Dewar Aged About 37 Years Resident of Village Pendrikala, Police Station Khairagarh, District Rajnandgaon Chhattisgarh. ... Appellant versus 1 - State of Chhattisgarh Through, Police Station Khairagarh, District Rajnandgaon Chhattisgarh. ... Respondent(s) For Appellant : Ms. Ranjana Jaiswal, Advocate. For Respondent : Shri Malay Jain, Panel Lawyer. Hon'ble Shri Justice Ramesh Sinha, CJ Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 05.02.2025. Per, Ravindra Kumar Agrawal, J. 1 The present appeal under Section 374 (2) CrPC has been filed by the appellant against the impugned judgment of conviction and order of sentence dated 22.01.2021 passed by the Additional Sessions Judge, Khairagarh, in Sessions Case No.13/2018 whereby the appellant has been convicted for the offence under Section 302 IPC and sentenced to undergo RI for life with fine of Rs.1000/-, in default of payment of fine amount, additional RI for six months. 2 Brief facts of the case are that, on 15.06.2018 while the deceased Shivendra @ Golu Golu Dewar was sleeping in his housed along with his family members, at about 10 PM the appellant came to his house in Digitally signed by INDRAJEET SAHU Date: 2025.02.14 18:01:08 +0530 2 an intoxicated condition and asked him to go outside. When he refused to go outside with him, the appellant dragged him and took him outside of his house. The said act of appellant was objected by his family members. At about 2 AM in the night, the appellant informed the family members of the deceased that deceased met with an accident and he fell down in a well. The deceased was found in well situated at Salhebharri field which was taken out by the witnesses and the appellant disclosed that after assaulting him by Sickle and Hammer he thrown him in the well. The deceased was immediately taken to Khairagarh hospital from where he was referred to Rajnandgaon hospital, but during treatment he died. Unnumbered Merg intimation Ex.P/12 was given to police Station Basantpur from where it was sent to jurisdictional police station at Khairagarha and numbered merg intimation Ex.P/13 was recorded. Inquest Ex.P/6 of dead body of deceased was prepared in presence of witnesses and the dead body was sent for its postmortem to Govt. Medical College Hospital, Rajnandgaon where postmortem was conducted by Dr. Akshay Kumar Ramteke, PW-11, who gave his postmortem report Ex.P/14. Antemortem injuries were found on the body of deceased and doctor opined that cause of death is due to hemorrhagic shock as a result of multiple unnatural injuries. Spot map Ex.P/2 was prepared by the police. The appellant was arrested on 21.06.2018 and his memorandum statement Ex.P/3 was recorded on 21.06.2018 and based on his memorandum statement one iron Sickle and one Iron Hammer was seized from him vide seizure memo Ex.P/4 and FIR Ex.P/1 was registered against the appellant for the offence under Section 302 IPC. 3 3 The statement under Section 161 CrPC of the witnesses were recorded. After completion of usual investigation, charge sheet was filed against the appellant for the offence under Section 302 IPC before the Additional Chief Judicial Magistrate, Khairagarh. The case was committed to the Court of Sessions Judge Rajnandgaon from where the same has been transferred to the trial Court for its trial. 4 The trial Court has framed charge against the appellant for the offence under Section 302 IPC. The appellant abjured his guilt and claimed trial. 5 In order to establish charge against the appellant, the prosecution has examined as many as 15 witnesses. Statement under Section 313 CrPC of the appellant has also been recorded in which he denied the circumstances appears against him, plead innocence and have submitted that he is innocent and falsely implicated in the offence. 6 After appreciation of oral as well as documentary evidence led by the prosecution, the trial Court has convicted the appellant and sentenced him as mentioned in opening para of this 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 prosecution witnesses which cannot be made basis to convict him for the alleged offence. There is no eyewitness to the incident. There is no specific opinion of doctor that death of deceased was homicidal in nature. The appellant himself has informed the family members of the deceased that deceased met with an accident and fell down in the well. Since it was night time and they could not aware of the well and for that reason 4 the deceased fell down in the well. In absence of any specific report from the doctor that deceased died due to homicidal death, he cannot be convicted for the alleged commission of murder of the deceased. There is no seizure of any weapon of offence. There is no FSL report that blood etc. have been found on the alleged weapon seized from the appellant or on his clothes. There is no cogent and clinching evidence against the appellant in the case. Therefore, the evidence produced by the prosecution is not sufficient to hold him guilty and he is entitled for acquittal. 8 On the other hand, the counsel for the State opposes the submissions made by the counsel for the appellant and have submitted that there is ample evidence against the appellant to convict him for the alleged office, but for minor omissions or contradictions, the evidence of victim as well as other witnesses are fully reliable and conviction can be made on the basis of evidence came on record. He took the deceased with him in the night and after sometime he informed the family members of deceased that deceased met with an accident. He was in special knowledge as to how injuries were found on the body of deceased. The doctor has clearly opined that injuries found on the body of deceased was unnatural which proves involvement of the appellant in murder of the deceased by assaulting him with Sickle and Hammer. The evidence available on record clearly suggest that after committing murder of the deceased by Sickle and Hammer he thrown him in the well and to get the advantage of their loneliness he informed the family members of the deceased that he fell down in the well. From the evidence of family members of the deceased it clearly reveals that deceased was lastly seen with the appellant and immediately 5 thereafter he was found in the injured condition and there is no explanation offered by the appellant as to how deceased received injuries on his body. Therefore, there is ample evidence on record to connect the appellant with the offence in question and appeal is liable to be rejected. 9 We have heard the counsel for the parties and perused the records of the case. 10 The first question for consideration would be the death of deceased as to whether he died due to homicidal death or for any other reason. 11 PW-11 Dr. Akshay Kumar Ramteke, who conducted the postmortem of the dead body of the deceased have stated in his evidence that he conducted the postmortem of dead body on 16.06.2018 and found following injuries on his body: • Lacerated wound on right parieto temporal region 5x0.6 cm tissue deep. • Abrasion on right side of forehead 5x4.2 cm • abrasion on right cheek 4x1.5 cm • lacerated wound on right side of upper lip 3.5x1 cm into tissue deep. • Multiple abrasions on right elbow 5x4cm in area. • Multiple abrasions on dorsal aspect of left hand in the area of 12x8.4 cm. • Abrasion on right illac region 14x5 cm. • Abrasion on lateral aspect of right thigh 5x5 cm • abrasion on right buttock 10x7 cm • abrasion on the back of body 6x2 cm and 11x12 cm • multiple abrasions on left knee 2x2cm, 0.5x0.4 cm and 1x0.5 cm. • Multiple abrasions on right knee 7x2cm. • Abrasion on lateral part of left leg 8x1 cm • stitched wound on right leg 9cm in length in which 6 stitches were found. • Stitched wound on right leg 2 cm above the other stitch wound 1.5 cm in length • multiple abrasion and contusion on right leg at medial aspect 16x12.4 cm • lacerated wound on right leg 3x2cm x2x1.5 cm tissue deep. 6 On his internal examination, hematoma was found on right frontal and parietal occipital region of skull. Subarachnoid hemorrhage was also found on left temporo occiptal lobe. Sternum bone was found fractured. The doctor opined that cause of death is hemorrhagic shock due to multiple unnatural injuries found on the body of deceased. In cross examination, the doctor admits that injuries found on the body was disclosed by him as unnatural. He also admits that if head of any person is dashed with any stone, then hemorrhage could be caused. He admits that if any person fall down in well and dashed with a stone, he may receive the same external injuries as has been found in the dead body of deceased. He did not tell as to whether death of deceased was due to fall in the well or not. 12 PW-1, Vikram Rajput, have stated in his evidence that on the date of incident when the appellant informed about the incident, they fetched the deceased from well and when he asked as to what happened with him, he informed that the appellant has committed Marpeet with him and thrown him in the well. He also states that blood stains were spread out near well. 13 PW-2, Lali Dewar, the wife of deceased, have stated that on the date of incident when the appellant asked her husband to go outside the house, her husband refused to go with him and then the appellant dragged him and took him from her house. After sometime, the appellant came alone and informed that the deceased fell down in the well. When her husband was taken out from well, he informed that the appellant has assaulted him by Sickle and Hammer and thrown him in the well. 7 14 PW-3 Ganeshi Bai, is the sister in law of the deceased. She too have proved the incident that on the date of incident the appellant forcibly took the deceased with him and after some time he informed that deceased fell down on the well. When the deceased was taken out from well, he informed about the incident that appellant has assaulted him by Sickle and Hammer and thrown him on the well. 15 From all these evidences and also from the evidence of doctor, although he specifically not opined that death of deceased is homicidal in nature, but from the facts of the case as well as the postmortem report, it can safely be held that deceased died due to injuries found on his body and his death was homicidal in nature. The trial court after considering the evidence available on record and the nature of injuries held the death of deceased unnatural and died due to said injuries found on his body which is neither perverse nor contrary to the record. 16 So far as involvement of appellant in the offence in question is concerned, PW-1, Vikram Rajput, PW-2, Lali Dewar and PW-3 Ganeshi Bai, have disclosed that on the date of incident the appellant came to the house of deceased and forcibly took him out from his house and after sometime he informed that deceased met with an accident and fell down in the well. 17 PW-1, Vikram Rajput, the elder brother of deceased and cousin brother of appellant, have stated in his evidence that at about 2 AM in the night, the appellant informed that his brother met with accident. When he proceeded towards the place of incident, near village Badaitola, the appellant informed him that his brother fell down in the well. He returned back to his house and went towards well keeping with him a Sari. The appellant took them near well and they saw the deceased 8 inside the well with the help of torch light. With the help of Sari, they took out the deceased from well and then his brother (deceased) informed him that the appellant Kanwar has assaulted him and thrown him in the well. They took the deceased to Khairagarh hospital from where he was referred to Rajnandgaon hospital where he died. In his cross examination, he admits that appellant used to come to his house frequently. He also admits that at about 10 PM in the night his brother Shivendra (since deceased) and appellant Kanwar went outside of house by motorcycle. At about 2 AM the appellant came to his house and informed about the incident. He specifically informed that deceased fell down in the well and would require either Sari or rope for taking the deceased up from well. Thereafter, they proceeded towards well situated in the field. In cross examination this witness remain firm in saying that on the date of incident the appellant and deceased went together from the house and after sometime the appellant informed about the incident and deceased was found inside well in injured condition. 18 PW-2, Lali Dewar, the wife of deceased, have also stated the same evidence as PW-1 has given that on the date of incident the appellant has forcibly taken her husband with him and after sometime he alone came back and informed about the incident. When they took out the deceased from well, he informed that appellant has assaulted him by Sickle and Hammer and thrown him in the well. When he was taken to hospital, he died. She too remain firm in saying that on the date of incident the appellant took the deceased with him and after sometime he was found inside the well in injured condition. 9 19 PW-3, sister in law of the deceased, is also the witness of same nature that on the date of incident when the deceased was sleeping in his house, he was forcibly taken by the appellant and after sometime the appellant informed that deceased met with an accident and fell down in the well. When deceased was taken out from well, he informed that appellant has assaulted him by Sickle and Hammer and thrown him in well. At that time, the deceased was having numerous injuries on his body including fracture of leg and rib. She also states that the appellant Kanwar requested them to disclose that if anyone ask about the incident, inform them that he received injuries by accident. She too remain stuck in saying that it is the appellant who assaulted the deceased by Sickle and Hammer and thrown him in the well. Further the fact that deceased and the appellant were together at the time of incident have not been denied by the appellant. 20 PW-4, Aman Dewar, is cousin brother of appellant as well as deceased, who have stated the same version as stated above by the other witnesses. However, this witness was turned hostile and not supported the case of prosecution and stated that the deceased had disclosed him that they had gone to commit theft, but due to darkness, the deceased could not see the well and fell down in it. 21 PW-6, Sagar Dewar, nephew of appellant as well as deceased, have supported the initial part of allegation that appellant took the deceased with him and after sometime he informed that deceased met with an accident and fell down in the well. In the later part, he turned hostile and not supported the case of prosecution. 22 From the aforesaid evidence, it is quite vivid and established that on the date of incident at about 10 PM in the night when the deceased 10 was sleeping in his house, he was forcibly taken by the appellant with him and after sometime the appellant alone came there and informed that deceased met with an accident and fell down in the well. When the family members went along with him to the place and taken out the deceased from well, he (deceased) informed them that appellant committed Marpeet with him and thrown him in well. The doctor also found numerous injuries on his body and opined that said injuries are unnatural. The fact remains that the appellant was lastly seen with the company of deceased when he had forcibly taken the deceased with him. 23 In the case of Nagendra Sah Vs. The State of Bihar (2021) 10 SCC 725 the Hon’ble Supreme Court in Para 23 has held as under: “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.” 24 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 11 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.” 25 In 313 CrPC statement, the appellant has not offered any explanation except that due to family dispute and enmity the witnesses are giving evidence against him, but it is not sufficient to establish his defence. 26 Considering the overall evidence available on record against the appellant, the manner in which the deceased received injuries, the evidence of witnesses PW-1, PW-2 and PW-3 and also the evidence of Dr. Akshay Kumar Ramteke, PW-11, the prosecution is able to prove the guilt of appellant that he caused injuries to the deceased and thrown him in the well, which clearly shows his intention and knowledge to commit murder. The weapon of offence i.e. Sickle and Hammer was also seized from the appellant. Although presence of blood on the said weapon of offence have not been proved by the prosecution, but in the facts and circumstances of the case even if it is not proved that said weapon of offence were stained with human blood, it does not affect the case of prosecution as the guilt of appellant has duly been proved by other evidences. 27 For the forgoing reasons we do not find any ground to interfere with the impugned judgment of conviction and sentence passed by the trial court. The appeal fails and his hereby dismissed. The appellant shall undergo the entire sentence as awarded by the trial court. 28 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 12 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. 29 The records of the case along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice inder