2025:CGHC:10634-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 726 of 2021 Kundal Ram Rajwade S/o Late Bacchu Ram Rajwade Aged About 35 Years R/o Village Uchdih, Police Chowki, Basdai, Police Station Surajpur, District Surajpur Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Surajpur, District Surajpur Chhattisgarh ---- Respondent (Cause-title taken from Case Information System) ------------------------------------------------------------------------------------------------------------------ For Appellant : Shri Shakti Raj Sinha, Advocate For Respondent/State : Shri SS Obeja, Panel Lawyer --------------------------------------------------------------------------------------------------------- Hon'ble Shri Justice Ramesh Sinha, Chief Justice & Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board Per Ravindra Kumar Agrawal, J. 04.03.2025 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 02.07.2021 passed by the learned Sessions Judge, Surajpur, District-Surajpur, Chhattisgarh in Sessions Trial No.65 of 2018, whereby the appellant has been convicted and sentenced in the following manner: Conviction Sentence Under Section 302 of IPC Life imprisonment and fine of Rs.100/- Cra 726 of 2021 2 Under Section 201 of IPC RI for 5 years and fine of Rs.100/- in default of payment of fine amount imprisonment for 1 month more All sentences to run concurrently 2. Brief facts of the case are that on 11.06.2018, the appellant had given merg intimation Ex.P17 to the Police Station Surajpur with the effect that in the morning, his wife-Ritabai has informed him that some poisonous insect has bitten in the night when she was sleeping, and she was being taken to the District Hospital, Surajpur, from where she was referred to the District Hospital, Ambikapur, and on the way near Vishrampur, she died. He kept her dead-body in the house and she did not know how she died. Based on the merg intimation, inquest Ex.P3 of the dead-body of the deceased was prepared in presence of the witnesses, and the dead-body was sent for its postmortem to the District Hospital, Surajpur, where PW10 Dr Seema Gupta conducted postmortem of the dead-body of the deceased, and gave postmortem report Ex.P13. While conducting the postmortem, the doctor has seen imprint contusion of fingers around the neck with abrasion B/L at back of lateral side of the neck due to struggle and nails inflict, and all injuries described above are antemortem and sufficient to cause death. Over left side of chest, multiple small abrasion round the circle also seen by the doctor and she opined that cause of death is Asphyxia due to throttling, and mode of death is homicidal. Un-numbered FIR Ex.P9 was registered against the appellant at Police outpost Basdei,District-Surajpur for the offence under Section 302 and 201 of the IPC, and thereafter, the numbered FIR Cra 726 of 2021 3 Ex.P10 has been registered at Police Station-Surajpur. The OPD slip Ex.P7 by which the deceased was referred to the Medical College, Ambikapur has also been seized. Spot Map Ex.P19 was prepared by the Police, and Ex.P20 was prepared by the Patwari. The appellant was arrested on 26.02.2018, statement of the witnesses under Section 161 of the CrPC have also been recorded , and after completion of usual investigation, charge-sheet was filed before the learned Chief Judicial Magistrate, Surajpur for the offence under Section 302 and 201 of the IPC. The case was committed to the Court of learned Sessions Judge for its trial. 3. Learned trial Court has framed charge for the offence under Section 302 and 201 of the IPC. The appellant denied the charge, and submitted that his wife has informed him in the night that some poisonous insect had bitten her, and he claimed trial. 4. In order to establish the charge against the appellant, prosecution has examined as many as 14 witnesses. Statement of the appellant under Section 313 of the CrPC has also been recorded, in which he denied the circumstances appearing against him, pleaded innocence and submitted that he has been falsely implicated in the offence. 5. After appreciation of oral as well as documentary evidence led by the prosecution, learned trial Court has convicted the appellant and sentenced him as mentioned in the earlier paragraphs of this judgment. Hence this appeal. Cra 726 of 2021 4 6. Learned counsel for the appellant would submit that 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 the appellant for the offence in question. There are material discrepancies also in the evidence of prosecution witnesses. There is no eyewitness to the incident, and case of the prosecution is based on the circumstantial evidence, that the appellant and the deceased were residing together in the house at the time of incident, appellant has been convicted. Appellant has taken her to the hospital for her treatment. Had the appellant been committed murder of his wife, he would have fled away from the spot or he would not have taken her for treatment. There is no weapon of offence seized from him. There is no investigation by the Police that the deceased was died due to biting of any poisonous insect. Therefore, in absence of any cogent and clinching evidence, the appellant cannot be convicted, and he is entitled for acquittal. 7. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and submitted that there is sufficient evidence on record for holding the appellant guilty for the offence in question. The appellant has not disputed the fact that he was with the deceased on the date of incident, and the deceased was found injured in the house, that too, having injury on her neck. External injuries on her body were also found which supports that deceased was died due to throttling and as per postmortem report also, she died due to Cra 726 of 2021 5 throttling of neck, and her death was homicidal in nature. When the appellant was with the deceased, and the deceased died homicidal death, burden lies on the appellant to prove that how his wife has received injuries on her neck, by which she died. The appellant has failed to give any explanation as required under Section 106 of the Evidence Act, and therefore, learned trial Court has rightly convicted the appellant for commission of murder of his wife, and the same is not required for any interference. 8. We have heard learned counsel for the parties and perused the record. 9. The first and foremost question for its determination would be, whether death of the deceased is homicidal or not. 10. PW6 Dr Vidyabhushan Toppo, who gave primary treatment to the deceased at the District Hospital, Surajpur has proved the physical condition of the deceased. Homicidal death of the deceased is proved by PW10 Dr Seema Gupta, who conducted the postmortem of the dead- body of the deceased. PW6 has stated in his evidence that on 11.06.2018, the deceased Neetabai (correct name is Reetabai) was brought to the hospital before him, and he examined and found her gasping, and froth was coming out from her mouth, and nose. Her vital conditions are deteriorating, and she was in unconscious condition, and not able to speak. After giving primary treatment to her, she was being referred to the Medical College, Ambikapur vide Ex.P7, i.e. her Outdoor Cra 726 of 2021 6 Patient Prescription. The persons who brought the deceased to the hospital were saying that some poisonous insect had bitten her but he could not find any mark of biting of any insect. In cross-examination, he admitted that the medicines which were given to the deceased at the time of her primary treatment, none of those medicines relate to the treatment of biting of poisonous insect. He further explained that froth can be coming out from mouth and nose but he could not tell the reason for that, as he was not the subject specialist. 11. PW10, Dr Seema Gupta, who conducted the postmortem of dead- body of the deceased has stated in her evidence that on 12.06.2018, she conducted the postmortem, and found imprint contusion of fingers with abrasion on neck of the deceased. Multiple small abrasions have also been found on the body of the deceased, which reflect struggle made by the deceased. The injuries were antemortem in nature, and sufficient to cause death of the deceased. After conduction the postmortem, she opined that cause of death is Asphyxia due to throttling, and mode of death is homicidal. In cross-examination, though she admitted that there was no fracture of any bone of her body, but nothing in her cross- examination to disbelieve her evidence that the deceased died due to biting of any poisonous insect. She found injuries on the neck of the deceased, which are sufficient to cause death and she died due to throttling. Cra 726 of 2021 7 12. In cross-examination of PW10, Dr Seema Gupta, there was no suggestion to her that the deceased may have died due to bite of any poisonous insect, or any symptoms of the same are also there. Presence of contusion of fingers on the neck of the deceased clearly proved that she was throttled which was cause of her death. 13. The witnesses to the inquest PW2-Mohan Rajwade, and PW4- Tikam Rajwade have also supported the prosecution case that the deceased died due to unnatural circumstances in her house. The learned trial Court has considered the evidence of the doctors, postmortem report, and the inquest, and held that the deceased died homicidal death, which is neither perverse, nor contrary to the record. 14. So far as involvement of the appellant in the offence in question is concerned, children of the appellant and deceased and other witnesses have proved that on the date of incident, appellant was there in the house with the deceased. 15. PW1 Parmeshwar, who is son of the appellant and deceased has stated in his evidence that on the date of incident, her mother and father were sleeping in a room, and he along with his sister were sleeping in another room. In the morning, her mother was gasping, and saying that some insect had bitten her but his father has not informed as to what happened to his mother. His mother was being taken to the hospital. At this stage, this witness declared hostile, and not supported the prosecution case. Cra 726 of 2021 8 16. PW3, Kavita, daughter of the appellant and deceased stated in her evidence that her mother died due to snake bite. She was being taken to the hospital. Firstly, they have called one Harihar Panda, snake exhumer, and thereafter, her mother was being taken to the Surajpur hospital. On the date of incident, her mother and father were sleeping in another room, and she along with her brother, was sleeping in other room. This witness too, has been declared hostile, and thereafter, not supported the prosecution case. 17. These two witnesses are the children of the appellant and deceased, and proved that on the date of incident, appellant was there with the deceased in a room. 18. PW7 Khelsai, cousin of the deceased, stated in his evidence that when he received information about the incident, he too had gone to the hospital at Surajpur, the doctor had informed him that there is no symptoms of snake bite on her body, and when he met with the deceased in the hospital, she informed him by gestures that the appellant had throttled her neck, and when he went to the house of the appellant, his nephew has informed that there was quarrel between the appellant and deceased. Though this witness has been declared hostile but he supported the prosecution case that Parmeshwar, PW1 has informed him that after consuming liquor, his father brutally had beaten his mother, and pressed her neck. In his cross-examination, he remained firm in saying that the doctor has informed him that there was no symptom of any snake Cra 726 of 2021 9 bite found on her body, and Parmeshwar informed him that there was quarrel between his father and mother. 19. PW2 Mohan Rajwade, bhrother of the deceased has stated in his evidence that when he came to know about the incident, he too had gone to the hospital at Surajpur, and when he met with the deceased, she made gestures that the appellant pressed her neck. When he enquired from the doctor that the incident is of snake bite, but there was no symptom on her body about the snake bite. Then the doctor has referred her to the Ambikapur hospital but on the way to Ambikapur, near Vishrampur, his sister died. Thereafter, he informed about the incident to the Basdei Police. When this witness is declared hostile, he stated that the son of the appellant and the deceased, PW1-Parmeshwar had informed him that his father has committed murder of his mother. In cross-examination, he stated that his sister has informed through gestures about throttling of her neck, and he enquired from the doctor about the snake bite. He disclosed this in his Police statement Ex.P4 and if it is not there, he could not tell the reason. He further denied that relation between the appellant and his wife was good, and he voluntarily stated that the appellant committed mar-pit with the deceased many times. 20. From the evidence it is quite vivid that there is no symptom of any snake bite found on the body of the deceased, and the doctor has also denied that any snake bite mark or mark of any bite by poisonous insect Cra 726 of 2021 10 was noticed on the body of the deceased. It is only defence of the appellant that some poisonous insect has bitten the deceased, whereas, there is no symptom of the same on the dead-body of the deceased and the doctor has clearly opined that the deceased died due to throttling, and the death is homicidal in nature. The presence of the appellant in the same room with the deceased has been proved by his own children, as well as the other witnesses, which has not been specifically denied by the appellant. In the merg intimation, Ex.P17, he also informed that some poisonous insect had bitten the deceased,which is also found proved to be false information. From the evidence it also comes that the relation between the appellant and his wife was not good, and he used to quarrel with her and beat her many times. 21. When the presence of the appellant with the deceased in a room at the relevant point of time has been proved, then the appellant is under obligation to prove as to under what circumstances the deceased received injuries on her body, and the fact within the special knowledge of the appelalnt has tobe proved by him as provided under Section 106 of the Evidence Act, 1872 (for short, ‘the Evidence Act’) 22. In 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 Cra 726 of 2021 11 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 on the prosecution and Section 106 Cra 726 of 2021 12 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". 23. In case of Nagendra Sah v. 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. From overall facts and circumstances of the case, and evidence available on record, we do not find any good ground to interfere with the conviction, and sentence of the appellant, and to allow the appeal filed by him. The judgment passed by the learned trial Court is based on proper appreciation of evidence, and law applicable to it. 25. Consequently, the appeal does not have any merits, and hence it is hereby dismissed. Cra 726 of 2021 13 26. The appellant is reported to be in jail, and he shall serve the entire sentence as awarded by the learned trial Court. 27. Let a certified copy of this judgment along with the original record be sent to the trial Court concerned forthwith for necessary information and action, if any. 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 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 padma