1 2025:CGHC:14757-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 726 of 2022 Chamar Rai Sahu S/o Sukalu Ram Sahu, Aged About 63 Years R/o Village - Janjra, Police Station- Rajim, District - Gariyaband (C.G.) ... Appellant(s) (In Jail) versus State of Chhattisgarh Through The Station House OfÏcer, Police Station - Rajim, District Gariyaband (C.G.) ...Respondent(s) For Appellant : Mr. Harishankar Patel, Advocate. For Respondent/State : 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 27 .03.2025 1. Heard Mr. Harishankar Patel, learned counsel for the appellant. Also heard Mr. Nitansh Jaiswal, learned Panel Lawyer, 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: 2025.04.03 15:58:19 +0530 2 directed against the impugned judgment of conviction and order of sentence dated 10.02.2022, passed by the learned Additional Sessions Judge, Gariyaband (C.G.) in Session Trial No. 41 of 2018, 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. 1,000/-, in default of payment of fine, 01 year R.I. more. Section 201 of the IPC R.I. for 05 years and fine of Rs. 1,000/-, in default of payment of fine, 01 year R.I. more. Both the sentences have been directed to run concurrently. 3. Case of the prosecution, in brief, is that the complainant, namely, Vishnu Ram Sahu (PW-1) informed the Police Station In-charge, Rajim that on 14.04.2018, at about 06:30 a.m., a person came from village Jenjra, who told that Krishna Bai has passed away, then he went to village Jenjra to join the last rites and on lifting the cloth for last darshan at Muktidham, he saw blood coming out of the nose and ears of the deceased. On getting suspicious, he asked his brother-in-law, accused, Chama Rai, upon which he accepted to have killed his sister by strangulating her, which was informed by him at the Police Station Rajim. On the basis of above information of complainant, Vishnu Ram Sahu (PW-1), the Investigating OfÏcer of Police Station, Rajim, Rakesh Thakur (PW-14) reached the place of incident in village Jenjra and registered Dehati Merg Intimation (Ex.P/1) and Dehati Nalsi (Ex.P/2). 3 4. During investigation, notice under Section 175 of the Cr.P.C. vide Ex.P/3 was given to the witnesses for Panchnama proceedings of the deadbody of the deceased and inquest report (Ex.P/4) was prepared. A crime details form (Ex.P/7) was prepared on the indication of complainant. For conducting postmortem of the dead body, a map of the place of incident of the house of accused (Ex.P/7A) was prepared and the dead body of the deceased was sent to CHC, Rajim, for postmortem and postmortem report (Ex.P/11) was obtained. After postmortem, the dead body was handed over and dead body supurdnama (Ex.P/6) was prepared. For the query report of the postmortem report of the deceased, Krishna Bai Sahu, Ex.P/12A was sent to CHC Rajim and query report Ex.P/12 was obtained. Thereafter, Merg Intimation No. 12 of 2018 vide Ex.P/24 was prepared in Rajim Police Station. Further, a memorandum statement (Ex.P/17) of the accused was recorded in front of witnesses. On the basis of memorandum statement, on presentation of accused, a wooden cot was seized in front of witnesses and seizure memo (Ex.P/16) was prepared. During investigation, Constable Govinda Diwan brought stomach, intestine, liver, kidney, heart and salt solution of deceased Krishna Bai in a plastic box, preserved by the Doctor, from CHC Rajim and presented it at the Police Station. The same was seized in front of witnesses and seizure memo Ex.P/23 was prepared. After investigation, on finding evidence of crime against the accused under Section 302 of the IPC, he was arrested as per arrest memo Ex.P/19 and information regarding his arrest was given to his family members vide Ex.P/20. 5. Dead body of the deceased was sent for postmortem to the Community Health Center, Rajim, District Gariyaband (C.G.). Dr. A.K. 4 Humne (PW-3) conducted postmortem vide Ex.P/5. After conducting the postmortem, the Doctor expressed his opinion in the postmortem report vide Ex.P/11 that the death of the deceased was caused due to respiratory distress and the nature of death was homicidal. 6. Statements of the witnesses were recorded. After due investigation, the Police filed the charge-sheet against the accused/appellant before the jurisdictional criminal Court and the case was committed to the Court of Session for trial from where the learned Additional Sessions Judge, Gariyaband (C.G.) received the case on transfer for trial and for hearing and disposal in accordance with law. 7. The trial Court framed charges against the appellant for the offences punishable under Sections 302 and 201 of the IPC and proceeded on trial. The appellant abjured the guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 8. In order to bring home the offence, the prosecution examined as many as 18 witnesses and exhibited 25 documents. The appellant/accused examined none in his defence. 9. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 10.02.2022, convicted the accused/appellant for the offences punishable under Sections 302 & 201 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 5 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 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. A.K. Humne (PW- 3), who has conducted postmortem on the body of deceased, vide Ex.P/5, 6 has clearly come to the conclusion that the death of deceased was caused due to respiratory distress 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/11) of Dr. A.K. Humne (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. 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 7 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 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 1 AIR 1956 SC 404 8 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 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 2 (2021) 10 SCC 725 9 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 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 3 AIR 1956 SC 460 4 AIR 1974 SC 778 10 the accused has made out a specific defence. 24. In the present case, death of the deceased was caused due to respiratory distress 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. A.K. Humne (PW-3) and the postmortem report (Ex.P/11) 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 evidences of Dr. A.K. Humne (PW-3). 26. Dr. A.K. Humne (PW-3), who conducted the postmortem of the deceased vide Ex.P/5 opined that the death of the deceased was caused due to respiratory distress and the nature of death was homicidal. 27. Vishnu Ram Sahu (PW-1), stated in his deposition that when the dead body of the deceased was seen by the said witness, it was found that there was bleeding from ear and nose and there was a mark in the neck of the deceased. Smt. Kamin Dhruv (PW-9), has also deposed the same version in her deposition. Smt. Khemin Sahu (PW-4), Nagendra Kumar Sahu (PW-5), Smt. Nileshwari Sahu (PW-8), Poshan Lal Sahu (PW-10) and Lakhan Lal Sahu (PW-11) have also stated that there was bleeding from nose and ear of the deceased, which clearly reveals that the victim was subjected to quarrel and assault by accused. 28. Investigating OfÏcer, Rakesh Thakur (PW-14), stated in his deposition that he registered a Dehati Merg Intimation (Ex.P/1) regarding the death of Krishna Bai based on the complaint of Vishnu Ram's, who 11 stated that Vishnu Ram informed him that upon seeing the deceased's body, he noticed that blood was coming from her nose and ears, and her brother-in-law, deceased, Chamar Rai Sahu, confessed that the deceased died due to strangulation. 29. Tulsi Ram Sahu (PW-13), has stated in his deposition that during the investigation, the Police prepared a panchnama in his presence and recorded the accused's memorandum statement (Ex.P/17). The witness also stated that the accused confessed for strangulating his wife, Krishna Bai, who died later. However, during cross-examination, the witness denied being present during the Police proceedings and denied witnessing the seizure of the cot. The witness also denied that the accused confessed to kill his wife in his presence, instead stated that the accused said, “A big mistake has been made.” 30. Another witness, Bheekham Sahu (PW-16), corroborated the Investigating OfÏcer's memorandum proceedings. This witness also testified that the accused admitted to kill his wife by strangulation in his presence. 31. 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? 32. In this regard, the trial Court observed that Lachhani Sahu (PW-6) deposed that on the night of the incident, the accused and the deceased slept together in the same room, and later, the deceased was found to be dead. This fact is corroborated by another prosecution witness, Digeshwar Sahu (PW-7), who stated that the accused woke him up at 12 5:30 a.m. and informed that his grandmother (the deceased) had passed away. This establishes that the accused was the last person to be with the deceased when she was alive. Notably, the accused claimed that the deceased died naturally, but the testimony of medical witness Dr. A.K. Humane (PW-3) indicates that the deceased's death was homicidal in nature. The prosecution witnesses also testified that the blood was oozing out from the nose and ears of the deceased, and there were marks of strangulation on her neck, further confirming that the deceased was murdered by strangulation. This contradicts the accused's claim that the deceased died in her sleep, making the defence unacceptable. The accused failed to provide any explanation for the circumstances that implicated him in the crime. The prosecution successfully proved the facts of the case through reliable evidence, establishing the guilt of the accused beyond reasonable doubt. 33. 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. it is the appellant who has murdered the deceased by strangulation. 34. Considering the statements of the prosecution witnesses, the finding recorded by the trial Court in its judgment, the facts that the appellant has not offered any explanation under Section 313 of the Cr.P.C., it is clearly and reliably established that it was the accused/appellant, who caused the death of the deceased by strangulating her and in this regard, there is no defence on the part of the 13 accused/appellant during his examination under Section 313 of the Cr.P.C., and 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 offences punishable under Sections 302 & 201 of the IPC. Therefore, we do not find any illegality or irregularity in the findings recorded by the trial Court. 35. For the foregoing reasons, the criminal appeal being devoid of merit is liable to be and is hereby dismissed. 36. 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. 37. 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. 38. 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/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Brijmohan