1 2025:CGHC:33596-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1133 of 2024 Rajesh Kamro Ramsu Ram Kamro Aged About 35 Years R/o Village Mandari P.S. Kedgaon Present District Mohalla- Manpur Chowki Ambagarh Civil District Rajnandgaon (C.G.) ... Appellant(s) versus State of Chhattisgarh Through Police Station Manpur Present District Mohalla - Manpur Chowki Ambagarh Civil District Rajnanagaon (C.G.) ... Respondent(s) For Appellant : Mr. Akhilesh Mishra, Advocate. For Respondent/State : Mr. Shashank Thakur, Deputy Advocate General. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 17 .07.2025 1. Heard Mr. Akhilesh Mishra, learned counsel for the appellant. Also heard Mr. Shashank Thakur, learned Deputy Advocate General, 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: 2025.07.26 11:37:07 +0530 2 directed against the impugned judgment of conviction and order of sentence dated 17.05.2024, passed by the learned Session Judge, Rajnandgaon (C.G.) in S.T. No. 67 of 2020, 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, 06 months R.I. more. 3. Case of the prosecution, in brief, is that the appellant, Rajesh Kamro was residing with his mother deceased Hirda Bai in village Mandri, under the jurisdiction of Thana Manpur. On the incident date i.e. on 25.08.2020, appellant, Rajesh Kamro returned home at 9.30 p.m. and found that food was not cooked at home. Angered by this, appellant, Rajesh Kamro assaulted his mother Hirda Bai with hands, fists and kicks, due to which Hirda Bai died. Thereafter, Rajesh Kamro immediately went to the house of his maternal uncle Ghasiram (PW-5), who lived in village Mandri, and made extra judicial confession in front of him about the incident. Then Ghasiram (PW-5) immediately took him to the house of the appellant’s uncle Ramesh Kamro, where the appellant narrated the same. Thereafter, Ghasiram, Ramesh Kamro and Ramcharan brought the appellant to his house where Hirda Bai was lying dead in the kitchen. Further, case of prosecution is that on 26.08.2020, on the information of appellant’s uncle Ramesh Kumar, Investigating Officer, Pradeep Sori (PW-7) registered unnumbered Merg Intimation (Ex.P/8) and unregistered Dehati Nalishi (Ex.P/9) and issued body panchnama notice (Ex.P/10) to 3 the Panchas present on the spot and prepared Naksha Panchyatnama (Ex.P/11). Thereafter, Investigating Officer provided Duty Certificate (Ex.P/12) to Constable Subhash and sent the body of deceased Hirda Bai along with postmortem application (Ex.P/2) for postmortem to Community Health Center Mohla and prepared Crime Details Form (Ex.P/13) on the identification of Ramesh Kumar at the spot. The prosecution case is further that, on 26.08.2020 itself, Investigating Officer, Pradeep Sori (PW- 7) interrogated the appellant, Rajesh Kamro in the presence of witnesses Ratan Lal (PW-6) and Durgesh (PW-2) and recorded his memorandum statement (Ex.P/4), arrested him as per arrest panchnama (Ex.P/7) and informed his uncle about the arrest and after the above proceedings, the Investigating Officer returned to the Police Station and registered the Merg Intimation (Ex.P/14) and First Information Report (FIR) (Ex.P/15) and sent a letter (Ex.P/18) to the Tehsildar for getting the map prepared from the Patwari and sent the sari of deceased Hirda Bai to the Doctor through Ex.P/2 and obtained the opinion of the Doctor regarding the death of deceased Hirda Bai. 4. Dead body of the deceased was sent for postmortem to the Community Health Center, Mohla, District Rajnandgaon(C.G.). Dr. Seema Thakur (PW-1) conducted postmortem vide Ex.P/2A. After conducting the postmortem, the Doctor expressed his opinion in the postmortem report vide Ex.P/1 that the death of the deceased was caused due to suffocation due to throat bone fracture and the nature of death was homicidal. 5. 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 4 Session for trial from where the learned Session Judge, Rajnandgaon (C.G.) received the case on transfer for trial and for hearing and disposal in accordance with law. 6. The learned trial Court framed charges against the appellant for the offences 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 07 witnesses and exhibited 17 documents. The appellant/accused examined none in his defence. 8. The learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 17.05.2024, convicted the accused/appellant for the offence punishable under Section 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 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. 5 10. 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. 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 learned 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 learned trial Court was justified in holding that death of deceased was homicidal in nature ? 14. The learned trial Court, relying upon the statement of Dr. Seema Thakur (PW-1), who has conducted postmortem on the body of deceased, vide Ex.P/2A, has clearly come to the conclusion that the death of the deceased was caused due to suffocation due to throat bone fracture and the nature of death was homicidal. The said finding recorded by the learned 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. 6 We hereby affirm the said finding. 15. The next question for consideration would be, whether the learned 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/1) of Dr. Seema Thakur (PW-1) 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. 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 7 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 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 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 1 AIR 1956 SC 404 8 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. 20. The decision of the Hon’ble Supreme Court in the matter of Shambhu Nath Mehra (supra) was followed with approval 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 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.” 2 (2021) 10 SCC 725 9 21. 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. 22. 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 the accused has made out a specific defence. 23. In the present case, death of the deceased was caused due to suffocation due to throat bone fracture 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 3 AIR 1956 SC 460 4 AIR 1974 SC 778 10 evidence of Dr. Seema Thakur (PW-1) and the postmortem report (Ex.P/1) 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. Seema Thakur (PW-1). 25. Dr. Seema Thakur (PW-1), who conducted the postmortem of the deceased vide Ex.P/2A opined that the death of the deceased was caused due to suffocation due to throat bone fracture and the nature of death was homicidal. 26. Ghasiram Mandavi (PW-5) testified in his deposition that the deceased, Hirda Bai, was his sister. He further stated that on the day of the incident, at around 9:00 p.m., the appellant, Rajesh Kamro, came to his house and admitted to killing his mother because she had not prepared food. Ghasiram then accompanied Rajesh Kamro to Ramesh Kamro's house, where Rajesh Kamro repeated the same admission. Subsequently, they went to Ramcharan's house and then to the appellant's house, where they found the dead body of Hirda Bai in the kitchen. They moved the body to an adjacent room and spent the night there. 27. The Investigating Officer, Pradeep Sori (PW-7), testified in his deposition that on 26.08.2020, based on information given by Ramesh Kumar, the appellant's uncle, he registered an unnumbered Merg Intimation (Ex.P/8) and Dehati Nalishi (Ex.P/9) at the Police Station. He also prepared a site map (Ex.P/13) as identified by Ramesh Kumar. Later that day, he interrogated the appellant in the presence of witnesses Ratan 11 Lal (PW-6) and Durgesh (PW-2) and recorded the appellant's memorandum statement (Ex.P/4). The appellant was arrested according to the arrest panchnama (Ex.P/7), and the arrest was communicated to his uncle. Upon returning to the Police Station, Pradeep Sori registered a numbered Merg Intimation (Ex.P/14) and FIR (Ex.P/15). 28. Regarding the memorandum statement (Ex.P/4) of the appellant, Investigating Officer Pradeep Sori (PW-7) claimed to have recorded it in the presence of witnesses Ratan Taram (PW-6) and Durgesh Darro (PW- 2). However, Ratan Taram (PW-6) denied any involvement in such proceedings. Durgesh Darro (PW-2) initially stated in his examination-in- chief that the appellant had confessed to killing Hirda Bai at the Police Station, but later retracted this statement during cross-examination, alleging that the Police had coerced the appellant into signing. 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. The learned trial Court observed that Ghasiram Mandavi's (PW-5) statement regarding the appellant’s extra-judicial confession appeared entirely reliable, corroborated by the circumstance that the deceased was found dead in her home. This was further supported by Ratan Taram (PW-6), although he did not support the prosecution's case. Ghasiram Mandavi's testimony was deemed reliable because he was not a regular visitor to the appellant's house and would not have known about Hirda Bai's death unless the appellant had informed him. Based on the appellant's information, Ghasiram gathered others, including the 12 appellant's uncle Ramesh Kamro (since deceased) and Ramcharan (who was not examined), and found Hirda Bai dead at the appellant's house. This sequence of events confirmed Ghasiram's statement that the appellant had told him he had killed Hirda Bai and that she was lying dead at home. 31. From the analysis of the evidence, it is clear that on the date of the incident, 25.08.2020, the appellant, Rajesh Kamro, assaulted his mother, Hirda Bai, with his hands, fists, and kicks, resulting in a fracture of the hyoid bone in her neck. The appellant did not offer any defence to explain why Ghasiram Mandavi (PW-5) would falsely testify against him, and there was no evidence of animosity between them that would suggest Ghasiram was fabricating a story. The medical evidence confirmed that Hirda Bai died due to asphyxiation caused by the fracture of the hyoid bone in her neck. 32. Regarding motive, while it may not be of significant importance in this case, the appellant's actions suggest that his intention was to kill his mother. If he had only been angry about the food not being prepared, he would have likely stopped at being upset rather than resorting to physical violence. The nature of the injury, particularly the neck fracture, supports the charge against the appellant and reveals his criminal state of mind at the time of the incident. 33. A careful perusal of the aforesaid findings recorded by the learned 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 13 deceased by assaulting with his hands, fists, and kicks, resulting in a fracture of the hyoid bone in her neck. 34. Considering the statements of the prosecution witnesses and the findings recorded by the learned trial Court in its judgment, coupled with the fact that the appellant failed to offer any explanation during his examination under Section 313 of the Cr.P.C., it is clearly and reliably established that the accused/appellant caused the death of his mother, Hirda Bai, by assaulting her with his hands, fists, and kicks, resulting in a fracture of the hyoid bone in her neck. Therefore, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubt, and the learned trial Court rightly convicted the appellant for the offence punishable under Section 302 of the IPC. Consequently, we find no illegality or irregularity in the findings recorded by the learned 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. 14 38. Let a certified copy of this judgment along with the original record be transmitted to the learned trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Brijmohan