1 2025:CGHC:895-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 895 of 2024 Ram Ashish Bhuiyan, S/o Late Shivnath Bhuiyan, Aged About 60 Years, R/o Village Harhe, P.S. - Ranka, District - Gadhwa (Jharkhand) Present Address - Ward No. 3, Ramanujganj, P.S. - Ramanujganj, Distt - Balrampur- Ramanujganj, Chhattisgarh. ... Appellant versus State of Chhattisgarh Through The District Magistrate, Distt - Balrampur- Ramanujganj, Chhattisgarh. ... Respondents (Cause-title taken from Case Information System) For Appellant : Mr. MPS Bhatia, Advocate For State/Respondent : Mr. Sakib Ahmed, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha, Chief Justice 07/01/2025 1. Heard Mr. MPS Bhatia, learnead counsel for the appellant as well as Mr. Sakib Ahmed, learned Panel Lawyer, appearing for the State/respondent. 2. This criminal appeal is 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 ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.01.07 17:55:05 +0530 2 and order of sentence dated 28.03.2024 passed by the learned Second Additional Session Judge, Ramanujganj, District Balrampur-Ramanujganj (C.G.) in Sessions Case No. 55 of 2019, 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 03 months. 3. Case of the prosecution, in brief, is that, Sakendar Ram (PW-1) had lodged First Information Report (Ex.P/2) before Police Station Ramanujganj stating therein that on 18.03.2019, at about 7.00 PM, one Lalji Ram (PW-2) called him and informed about the death of his sister, namely Basanti, upo which, he (PW-1), Lalji Ram (PW-2), Smt. Parmila (PW-4), Ayodhya (PW-3), Smt. Sitadevi (PW-5) and one Kalavati Devi went to the house of accused/appellant and reached there on 19.03.2019, where accused/appellant told them that Basanti was not cooking food and was abusing him, due to which, he assaulted her upon her head, forehead, ear, throat, chest and stomach by means of wooden stick. Thereafter, wheels of investigation started running, and merg intimation was recorded vide Ex.P/1. Crime details form was prepared vide Ex.P/3 and summons under Section 175 of Cr.P.C. was given vide Ex.P/4. Spot map was prepared vide Ex.P/6 and Naksha Panchayatnama was prepared vide Ex.P/9. 3 Police statement of the appellant was recorded vide Ex.P/7. Blood stained and plain soil was seized from the spot of incident vide seizure memo Ex.P/11. Thereafter, the Police has registered the case bearing Crime No.46 of 2019 against the appellant for the offence punishable under Section 302 of the IPC. 4. During the investigation, memorandum statement of accused vide Ex.P/12 was recorded in presence of witnesses. Based on his statement, one wooden stick, t-shirt of the appellant and one red saree were seized from the possession of the accused and a property seizure memo (Ex.P/13) was prepared. The accused was arrested on 19.03.2019 vide Ex.P/16. The seized items were sent to the Regional Forensic Science Laboratory at Balrampur- Ramanujganj for examination. In the FSL report (Ex.P/21), blood was found on the seized stick, but the group of blood was not conclusive. The dead body of deceased Basanti was sent for postmortem vide Ex.P/18 to Community Health Center, Ramanujganj and received postmortem report vide Ex.P/22. In the postmortem report (Ex.P/22), Dr. Sharad Kumar Gupta (PW-11) opined that the cause of death seems to be hypovolemic shock due to internal hemorrhage, mode of death seems to be cardio- pulmonary arrest and nature of death is homicidal. 5. Statements of the witnesses were recorded. After due investigation, the Police had filed the charge-sheet against the accused/appellant before the jurisdictional criminal Court and the 4 case was committed to the Court of Sessions for trial from where the learned Second Additional Session Judge, Ramanujganj, District Balrampur-Ramanujganj (C.G.) received the case on transfer for trial and for hearing and disposal in accordance with law. 6. The trial Court has framed charges against the appellant for the offence punishable under Section 302 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. 7. In order to bring home the offence, the prosecution examined as many as 12 witnesses and exhibited 23 documents. In defence, neither any witness has been examined nor any document has been exhibited. 8. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 28.03.2024, convicted the accused/appellant for the offence punishable under Sections 302 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed. 9. 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 5 to each other. None of the witnesses have supported the case of prosecution. They also submits that the evidences 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. 10. On the other hand, 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. 11. 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. 12. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 13. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased were homicidal in nature ? 6 14. The trial Court, relying upon the statement of Dr. Sharad Kumar Gupta (PW-11), who has conducted postmortem on the body of deceased, vide Ex.P/22, has clearly come to the conclusion that the cause of death was hypovolemic shock due to internal hemorrhage, mode of death was cardio-pulmonary arrest and 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 affirm the said finding. 15. 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/22) of Dr. Sharad Kumar Gupta (PW- 11) 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 7 the appellant to explain such circumstance, which he failed to explain. 16. Now, the question would be, whether Section 106 of the Evidence Act would be applicable or not? 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 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 1 AIR 1956 SC 404 8 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 difficult, for the prosecution, to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty 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).” 9 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. 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 2 (2021) 10 SCC 725 10 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 & 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. 22. The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with 3 AIR 1956 SC 460 11 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, homicidal death were due to hypovolemic shock due to internal hemorrhage and the said fact has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Dr. Sharad Kumar Gupta (PW-11) and the postmortem report (Ex.P/22) that the death of deceased was homicidal in nature. 24. As regards complicity of the appellant in crime in question, conviction of the appellant is substantially based on the evidence of Dr. Sharad Kumar Gupta (PW-11). 25. As regards complicity of the appellant in crime in question, Sakendar Ram (PW-1), who is brother-in-law of the accused/appellant and the complainant/informant who had lodged the FIR. He has stated in his evidence that when he reached the house of the appellant, he saw that there were multiple injuries over the body of the deceased. Though he has stated in the cross-examination that he has not seen that appellant has assaulted his sister. In the merg intimation and FIR, there is a clear description of the incident as to how it happened. 4 AIR 1974 SC 778 12 26. The Investigating Officer, Surendra Kumar Dubey (PW-10), has stated in his deposition that he recorded the memorandum statement of the accused vide Ex.P/12, in the presence of witnesses, but refused to write the statement on his own as suggested by the defence. Examination of memorandum statement (Ex.P/12) also reveals that on the date of incident, wife of the accused did not cook food and on the very issue, quarrel had taken place and on sudden provocation, he had assaulted his wife by means of wooden stick. 27. Dr. Sharad Kumar Gupta (PW-11), who conducted the postmortem of the deceased vide Ex.P/22 opined that the deceased was died as a result of hypovolemic shock due to internal hemorrhage and mode of death seems to be cardio- pulmonary arrest to excessive bleeding and due to respiratory failure and cardiac collapse and the nature of death is homicidal. 28. The appellant had also given a memorandum statement vide Ex.P/12 where he had clearly admitted that on the petty issue regarding cooking of food, he became enraged and, in a fit of anger, killed his wife by means of wooden stick in the house. 29. 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? 30. In this regard, the findings of the trial Court are that it was the 13 appellant, who has murdered his wife on a sudden anger by means of wooden stick. Appellant/accused himself has stated in this memorandum statement as well as Police statement that he has murdered his wife by means of wooden stick on a petty issue regarding cooking of food and on the basis of his memorandum statement (Ex.P/12), the weapon of offence i.e. wooden stick which were stained with blood was also seized and the said fact is also evident from the FSL report (Ex.P/21) which amply reveals that such an incident of murder had taken place. Thus, the guilt of accused/appellant is amply evident from the aforesaid circumstances. 31. A careful perusal of the aforesaid findings recorded by the trial Court would show that the prosecution has established that : “(i) death of the deceased was homicidal in nature; (ii) on the date of offence, the appellant and the deceased was staying in the house; and (iii) it is the appellant who has murdered his wife, namely Basanti by assaulting her with the help of wooden stick. 32. Considering the evidences of the aforesaid witness as well as from the circumstantial evidence and further as the dead body of 14 the deceased was found in the house where the accused/appellant with his wife was living together, which amply shows the incident of murder and thus, the incriminating circumstances prove the involvement of accused/appellant in murdering his wife, the accused/appellant has also 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 it is also notable that there was no other member of the family in the house except the appellant, the circumstances clearly indicate that it was the appellant alone who had committed the murder. 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. 33. For the foregoing reasons, the criminal appeal being devoid of merit and is liable to be and is hereby dismissed. 34. 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. 35. 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 15 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 Anu