1 2025:CGHC:1691-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1075 of 2024 1 - Dhaneshwar Sahu S/o Harbhajan Sahu Aged About 25 Years R/o Gram Atargaon, P.S. Dongargaon, District : Rajnandgaon, Chhattisgarh. ... Appellant Versus 1 - State of Chhattisgarh Through Police Station Dongargaon, District : Rajnandgaon, Chhattisgarh. ... Respondent ____ For Appellant : Shri Anurup Panda, Advocate. For State : Shri Malay Kumar Jain, Panel Lawyer. Hon'ble Shri Justice Ramesh Sinha, CJ Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 10.01.2025 Per, Ramesh Sinha, CJ. 1. The case was being listed for hearing on application for suspension of sentence and grant of bail, however, with the consent of the parties, the matter is heard finally. 2. The present appeal has been filed by the appellant against the impugned judgment of conviction and sentence dated 23.04.2024 passed by the Sessions Judge, Rajnandgaon, whereby the appellant has been convicted for the offence under Section 302 IPC and sentenced for life imprisonment with fine of Rs.1000/-, in default of payment of fine amount, additional RI for six months. Digitally signed by INDRAJEET SAHU Date: 2025.01.17 15:15:08 +0530 2 3. Brief facts of the case are that, Roshni Sahu (since deceased) performed love marriage with the appellant since 2-3 years back. On 07.05.2022, village Kotwar, Ramchand Lautre, PW-1, received information that the appellant has committed murder of his wife Roshni Sahu. When he went on the spot, she saw dead body of deceased lying inside the house of the appellant having deep cut injury on her neck and bloodstains were spread in the room including wall. On the merg intimation given by Ramchand, PW-1, unnumbered merg intimation Ex.P/1 was recorded at Police Station Dongargaon. Dehati Nalisi Ex.P/2 was also recorded. Inquest of the deadbody of the deceased Ex.P/4 was prepared in presence of witnesses and the body was sent for its postmortem to Community Health Centre, Dongargaon, where PW-14, Dr. Ajay Nayak, conducted postmortem of the dead body and gave his report Ex.P/23. While conducting the postmortem, the doctor noticed chop wound at the neck region by hard, heavy and sharp object by multiple attempts by which the whole head decapitated from rest of the body. He opined that cause of death is shock due to hemorrhage by multiple chop wounds at neck by hard, heavy and sharp object and nature of death is homicidal. Numbered merg intimation Ex.P/28 was recorded and FIR Ex.P/36 has been registered against the appellant for the offence under Section 302 IPC. Spot map Ex.P/5 was prepared by the Police whereas Ex.P/7 by the Patwari. Spot inspection Panchnama Ex.P/6 was also prepared. The blood sample was taken out from the spot through the piece of cotton vide seizure memo Ex.P/32. 3 The appellant was arrested on 07.05.2022 and he too was sent for his medical examination to Community Health Centre, Dongargaon where PW-15 Dr. Sudesh Bansod, has medically examined him and gave his report Ex.P/25. Blood found on the body of the appellant was also taken out from the piece of cotton and seized vide seizure memo Ex.P/33. The memorandum statement of the appellant Ex.P/14 was also recorded on 07.05.2022 and based on his memorandum statement one carpenter Axe was seized vide seizure memo Ex.P/15. The said carpenter Axe was also sent for its query report to the doctor who gave his report Ex.P/24 and opined that blood like stains were found over multiple area including handle of the Axe. It was sealed and sent to FSL for its chemical examination. The nails of the appellant were also taken vide seizure memo Ex.P/16. The clothes of the appellant were seized vide seizure memo. Ex.P/17. The carpenter Axe seized from the appellant, the blood swab taken out from the spot, clothes of the appellant, his nails, blood swab taken out from the body appellant and clothes of deceased and her blood sample were sent for its chemical examination to FSL Raipur, from where report Ex.P/38 was received, according to which, except plain cotton, the other articles were found stained with human blood. 4. Statement of witnesses under Section 161 CrPC have been recorded and after completion of usual investigation charge sheet was filed against the appellant before the Judicial Magistrate, First Class, Rajnandgaon for the offence under Section 302 IPC. The 4 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 prove charge against the appellant, the prosecution has examined as many as 19 witnesses. The statement of appellant under Section 313 CrPC have also been recorded in which he denied the circumstances appears against him, plead innocence and have submitted that he is innocent and have been falsely implicated in the offence. He was not in the house at the time of incident. When he came to his house, his house was opened and household articles were scattered. The cash amount and valuable articles were missing. His wife was murdered by someone after committing theft. When he started shouting after seeing her deadbody, the villagers came, but the police has falsely implicated him. 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 the earlier paragraph of this judgment. Hence this appeal. 7. Learned counsel for the appellant would submit that the appellant is innocent and has been falsely implicated in the case. There are material omissions and contradictions in the evidence of prosecution witnesses which cannot be made basis for his conviction. The prosecution has failed to prove its case beyond reasonable doubt. There is no eye-witness to the incident. None of witnesses have stated that appellant was present in the house 5 at the time of incident. The conviction is based only on presumption that he has committed murder of his wife whereas there is no evidence that he committed the murder. Even motive has not been proved by the prosecution. The memorandum and seizure witnesses have not supported the case of prosecution. The memorandum statement has no evidentiary value. Therefore, under the facts and circumstances of the case as well as the evidence produced by the prosecution, the conviction of the appellant is illegal and perverse and the same deserves to be set aside and the appellant is entitled for acquittal. 8. On the other hand, the counsel for the State vehemently opposes the arguments advanced by the counsel for the appellant and would submit that the prosecution has proved its case beyond reasonable doubt. The appellant was residing with the deceased. The deceased found dead in her house in unnatural circumstances for which the appellant has to explain the injuries found on the body of deceased. The appellant has failed to prove his presence at any other place at the time of incident. The weapon of assault i.e. carpenter Axe has been seized on his memorandum statement and human blood was found in the blood swab taken out from the spot, clothes of the appellant and also blood swab taken out from the body of the appellant, for which also there is no explanation. Although it has been argued by the counsel for the appellant that when the appellant saw the deadbody of his wife, he taken her dead body on his lap by which the blood was found on his body as well as his clothes, but 6 considering the entire circumstances it cannot be said that blood found on the body and clothes of appellant was as a result of taking the deadbody of deceased on his lap. The neck of the deceased was separated from the body which shows the gravity of the assault. As per postmortem report, repeated blow was given on the neck which also shows the intention of the appellant to kill his wife. The appellant is required to explain the circumstances in which his wife was found dead in injured condition inside his house as provided under Section 106 of the Evidence Act, but he failed to give any plausible explanation and the trial court has rightly convicted him for the alleged offence of commission of murder of his wife. Therefore, the appeal has no merit and the same is liable to be dismissed. 9. We have heard learned counsel for the parties and perused the records. 10. So far as homicidal death of the deceased is concerned, from the evidence of witnesses to inquest PW-1 Ramchand Lautre, PW-3 Smt. Kuleshwari and PW-7 Chabilal Sahu, it is proved that they saw the deadbody of deceased inside the house having injuries on her neck and bloodstains were spread in the room. PW-14, Dr. Ajay Nayak, who conducted the postmortem of the deadbody, have also proved the postmortem report Ex. P/23. He stated in his evidence that on 08.05.2022 he conducted postmortem of the deadbody of deceased and found multiple chop wound in the deadbody due to which her head part was separated from the other part of body and all the blood vessels, vertebra, windpipe 7 and food pipe were cut and cause of death was shock due to hemorrhage by multiple chop wound at neck by hard, heavy and sharp object. Her death is homicidal in nature. In his cross examination, the defence could not brought any material which led this court to draw an adverse inference that death of the deceased was not by the neck injury. Thus, the death of deceased being homicidal in nature has been proved by the prosecution. 11. So far as involvement of appellant in offence in question is concerned, PW-1, Ramchand Lautre, have stated in his evidence that he was being informed by one villager Chitranjan about the incident and he went to the spot, he saw the deadbody of deceased inside the room of appellant having multiple injuries on her neck. Although, this witness have been declared hostile, but he proved the inquest Ex.P/3 and spot inspection report Ex.P/6 in which his signature is there. In cross examination, he states that when he reached on the spot, the appellant was crying and the articles of his house was scattered. 12. PW-3, Smt. Kuleshwari, is also the witness to same fact as PW-1 is. She too have stated that when she heard the noise coming from the house of appellant, she went there and saw the deadbody inside the house of the appellant in injured condition. She was also declared hostile. In cross examination she states that when she reached on the spot, the appellant was crying that his wife has been murdered by someone else. 8 13. Though PW-4, Suberam Sahu and PW-5 Ramgulal have turned hostile, but they have proved that deadbody of the deceased was found in injured condition inside the room of the appellant. 14. PW-6, Ramesh Kumar Sahu, the uncle of the deceased, have stated in his evidence that he was at Nagpur at the time of incident. He was being informed through telephone about the incident. He states that day before the date of incident the deceased informed him over telephone that appellant and her in laws are harassing her. He convinced her to adjust there. After the incident when he went to her house, he came to know that the appellant has committed her murder. In cross examination, he was being asked that he has not disclosed the fact that a day before the date of incident the deceased informed him that she was being assaulted by the appellant, to which he admits that he disclosed the same to the police. From his 161 CrPC statement Ex.D/1, it is there that on 03.05.2022 when he had a talk with the deceased, she informed him that the appellant quarreled and assaulted her by rod. From the evidence of this witness, it clearly reveals that relationship between the appellant and deceased were not good and deceased was subjected to cruelty by the appellant and he used to beat her. On 03.05.2022 also she was beaten by the appellant which she informed to him. 15. PW-7, Chabilal Sahu, is also the witness who has seen the deadbody inside the house of appellant having injuries on her neck. 9 16. PW-16, Shobhanlal Sahu, have also stated that on the date of incident a deadbody was found inside the house of appellant in injure condition. He is the Panch of village Badratola. He states that deceased had informed him prior to incident that appellant used to quarrel with her on petty issues and she was not happy. A village meeting was also convened where the appellant was convinced not the raise quarrel with his wife/deceased. 17. PW-18, Milandas Sahu, who is the father of deceased, have stated in his evidence that his daughter performed love marriage with the appellant. Up to two years of their marriage, they were residing happily and thereafter dispute ensued between them. A village meeting was also convened at Badratola in which the appellant was convinced not to raise quarrel with his wife/deceased. On 07.05.2022 when he had gone to Nagpur to earn his livelihood, Ramchand Lautre, PW-1, had informed him over telephone that his daughter is being murdered by the appellant and her deadbody is lying inside her house. In cross examination, he remain firm in saying that his daughter was being harassed by the appellant which was intimated to him by his daughter and a village meeting was also convened. It is proved by this witness that relation between the appellant and deceased was not cordial and appellant regularly used to beat his wife/deceased. 18. As per FSL report Ex.P/38, human blood was found in all the articles i.e. carpenter Axe seized from the appellant, blood swab seized from the spot, clothes of the appellant, pieces of nails of 10 the appellant, blood swab taken from the body of the appellant as also the clothes of the deceased. Although, the appellant gave explanation that after death of deceased he has taken deadbody in his lap, but he has not explained in his 313 CrPC statement as to how blood was found in his body. Though, it has been argued by the counsel for the appellant while taking the deadbody on his lap, the blood came in contact with his body, but in absence of any explanation in his 313 CrPC statement, the submissions made by the counsel for the appellant cannot be accepted as sufficient explanation with that respect. 19. In Kalu @ Laxminarayan Vs. State of Madhya Pradesh, 2019 (10) SCC 211, the Supreme Court has held as under: “……..Once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under Section 313, Cr.P.C. with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased.” 20. In Balvir Singh Vs. State of Uttarakhand, 2023 LiveLaw SC 861, it was observed as under: “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 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”. 11 21. Further, in Nagendra Sah Vs. The State of Bihar, 2021 (10)SCC 725, it was observed by the Supreme Court 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. 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. Once it is proved that deadbody was found inside the house of the appellant; the injuries have been found on the neck of the deceased and she died due to neck injury; her neck was completely separated from the other part of the body and she found in homicidal death, then the appellant has to explain the fact within special knowledge as to how his wife found dead inside his house in injured condition, but in the present case, he failed to explain about the same. 23. 23. Considering the facts and circumstances of the case as also the aforesaid law laid down by the Hon’ble Supreme Court with respect to burden to prove upon the appellant to explain the homicidal death inside the house, the circumstances proves the guilt of the appellant that he committed murder of his wife inside his house by the carpenter Axe. The defence taken by the appellant that someone has committed murder of the deceased and committed theft in his house, is also not proved in the circumstances of the case as there was no report made by the appellant about theft or stolen of any article from his house. 12 24. For the foregoing reasons, we are of the opinion that prosecution has proved the offence against the appellant that he committed murder of his wife inside the house by giving repeated carpenter Axe blow on her neck and she died due to neck injuries. The gravity of the Axe blow was such that her neck was completely separated from the other parts of the body which shows his intention to commit her murder. 25. In the result, the appeal filed by the appellant fails and is hereby dismissed. The appellant shall undergo the entire sentence awarded by the trial Court. 26. Let a copy of this judgment and the original records be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice inder