1 2025:CGHC:7931-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1414 of 2023 1 - Dev Singh @ Deva S/o Shri Kango, Aged About 40 Years, R/o Village - Pampapur, Outpost - Khadgwa, Police Station - Pratappur, District - Surajpur (C.G.) ... Appellant versus 1 - State of Chhattisgarh Through Police Station - Pratappur, District - Surajpur (C.G.) ... Respondent For Appellant : Mr. Amit Buxy, Advocate. For State : Mr. Sangharsh Pandey, Govt. Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ravindra Kumar Agrawal, J. 14-02-2025 1. The present appeal has been filed by the appellant under Section 374 (2) of the Cr.P.C. against the impugned judgment of conviction and sentence dated 28-04-2023 passed by the learned Additional Sessions Judge, Pratappur, District Surajpaur in Session Case No.20/2021 whereby the appellant has been convicted for the offence under Section 302 of the IPC and sentenced with R.I. for life and fine of Rs. 100/-, in default of payment of fine further R.I. for 3 years. 2. The brief facts of the case are that, on 25-12-2020 at about 10:30 Digitally signed by MOHAMMAD AADIL KHAN 2 hours informant Smt. Lalita Lakada PW-3 lodged a dehati merg intimation Ex.-P/3 at Police Outpost Khadgawan, Police Station Pratappur that on 24-12-2020 in the morning at about 09:00 a.m. her mother Pavita Tigga had gone to cut sugarcane, but could not return till evening and when she made a telephonic call in the mobile phone of her mother, which was disconnected by the other side and subsequently it was found switched of. On 25-12-2020 her husband informed her that dead body of her mother is lying near field at Navapara. When she had gone to the place of incident she saw the dead body of her mother having injury on her body. On some distance of the dead body her clothes and sickle and chappal was also lying. The police reached on the spot and prepared inquest Ex.-P/5 in presence of the witnesses. The dead body of the deceased was sent for its postmortem to Community Health Center, Pratappur where a team of two doctors consisting of Doctor Neha and Doctor Bhupendra Singh (PW-11) conducted the postmortem of the dead body of the deceased and gave their report Ex.-P/14. While conducting the postmortem of the dead body the doctor has noticed following injuries on the body:- (i) contused teared wound over left parietal area having size [(contusion 4 cm x 3 cm) (tear wound 1.5 cm x 2 mm x 2 mm)] (ii) contusion over left face 6 cm x 5 cm, (iii) multiple small contusion over chin and forehead having approx. size 2 cm x 1.5 cm, (iv) abrasion over both knee anterior aspect size 3 cm x 2 cm, (v) abrasion over hip having size 15 cm x 10 cm, 3 (vi) abrasion over both elbow 4 cm x 3 cm, (vii) contused abrasion over sternal area including chest, 6 cm x 4 cm, on her internal examination, subarachnoid hemorrhage present on her brain, slight hematoma underneath the contused area over chest and after conducting postmortem examination, the doctor has opined that after having careful postmortem they came to the conclusion that the cause of death is neurogenic shock due to subarachnoid hemorrhage, nature of death is homicidal and time since death is 18 to 36 hours. Spot map Ex.-P/6 and P/7 were prepared by the police. During the investigation one water bottle, half burned piece of wood, mud scratched from the body and clothes of the victim, blood stained and plain soil, paddy straw of underneath of dead body, soil contained with kerosene oil smell, soil obtained from the petticoat of the deceased, soil from the underwear of the deceased, soil from the sickle, scarf and chappal, plain soil, clothes, ladies chappal and sickle, one ladies underwear, one petticoat, broken piece of bangles and one hair band, one woolen shawl and one plastic bag having Gamchha in it have been seized from the sport vide seizure memo Ex.-P/12. The seized chappal was sent for its query report to the doctor at community health center, Pratappur who gave its query report Ex.-P/15 and opined that the injury whatever else mentioned in PM report specifically over left face can be caused by such type of sleeper. The circumstances whatever else represented by police in reference to PM case can be underlying cause behind the fatal injury, which ultimately resulted into death. Merg intimation Ex.-P/16 was registered at Police Station 4 Pratappur, Outpost Khadgawa and FIR Ex.-P/17 has been registered against unknown person for the offence under Section 302 of the IPC. The seized sickle, clothes, hawai chappal, ladies underwear, petticoat, plastic bag and gamchha, broken piece of bangle and one hair band and woolen shawl were identified that the same belongs to deceased Pavita Tigga by daughter of the deceased Smt. Lalita Tigga and identification panchnama Ex.-P/11 has been prepared in presence of the witnesses. The appellant was arrested on 27-12-2020 and his memorandum statement Ex.-P/8 was recorded. Based on his memorandum statement one gamchha, one pair of hawai chappal and 5 pieces of wood of mango tree have been seized from him vide seizure memo Ex.-P/9. The seized articles were sent for its chemical examination to regional FSL Ambikapur, District Surguja from where report Ex.-P/28 was received. According to the FSL report except plain soil article B and hawai chappal article F, blood stains found on all the articles and except the blood stained soil article A, all other articles were found stained with human blood. Further the petticoat of the deceased article D, hawai chappal seized from the appellant article E and saree of the deceased article G are found stained with “B” group of human blood. In the vaginal slide of the deceased article K, semen and sperms were found, however, no semen and sperms were found on the underwear and saree of the deceased. During investigation police has also obtained the CDR/CAF of mobile number 6264574310 and has obtained a certificate under Section 65 B of the Evidence Act from service provider Reliance Jio 5 Infocom Limited. Statement of the witnesses under Section 161 and 164 of the Cr.P.C. have been recorded and after completion of usual investigation, charge sheet was filed against the appellant for the offence under Section 302 of the IPC before the learned Judicial Magistrate First Class Pratappur. The case was committed to the Court of learned Sessions Judge, from where the same has been transferred to the learned trial Court for its trial. 3. The learned trial Court has framed charge against the appellant for the offence under Section 302 of the IPC. The appellant abjured his guilt and claimed for trial. 4. In order to prove charge against the appellant the prosecution has examined as many as 14 witnesses. Statement under Section 313 of the Cr.P.C. of the appellant has also been recorded in which he denied the circumstances appearing against him, pleaded innocence and has submitted that he has been falsely implicated in the offence and he is innocent. 5. After appreciation of the oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in the earlier part of this judgment. Hence, this appeal. 6. Learned counsel for the appellant would submit that the 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 in the alleged offence. There is no eye-witness to the incident 6 and the case of the prosecution is based on circumstantial evidence and chain of circumstances is not complete. The memorandum and seizure have not been proved in accordance with law and except that there is no evidence against the appellant. The articles have been seized from open place and it was common article of regular use in village. In absence of any motive, a link of circumstantial evidence is missing and therefore, there is lack of cogent and clinching evidence against the appellant and he is entitled for acquittal. 7. On the other hand, learned counsel for the State would submit that the prosecution has proved its case beyond reasonable doubt. But for minor omissions and contradictions the evidence of the prosecution witnesses are fully reliable and sufficient to convict the appellant in the offence in question. He would further submit that there are overwhelming evidence against the appellant which connect him with the offence in question. He would further submit that from the FSL report as well as call details report, has duly been connected as link of circumstantial evidence and thus every link of circumstantial evidence is connected with each other which has been rightly considered by the learned trial Court while convicting the appellant and the appeal of the appellant does not have any merits and is liable to be dismissed. 8. We have heard learned counsel for the parties and perused the record of the case with utmost circumspection. 9. In the case, homicidal death of the deceased has not been specifically challenged by the appellant, further the homicidal death of the deceased has been proved by the witnesses to the inquest as well 7 as postmortem report. PW-8 Ramchandra (correct No. is PW-9) and PW-10 Hari Toppo are the witnesses to the inquest Ex.-P/5. They stated in their evidence that they saw the dead body of the deceased having injuries on her and inquest of the dead body has been prepared in their presence. The injury found on the body of the deceased have further been proved by PW-11 Doctor Bhupendra Singh who along with Doctor Neha has conducted the postmortem of the dead body of the deceased. He stated in his evidence that on 25-12-2020 he conducted the postmortem of the dead body of deceased Pavita Tigga and found injuries on her body (details of the injuries have been mentioned in earlier part of the judgment). After conducting the postmortem they opined that the cause of death of the deceased was neurogenic shock due to subarachnoid hemorrhage and death was homicidal in nature. In his cross-examination the defence could not extract any material from him so that the homicidal death of the deceased could be disputed. The learned trial Court has also came into conclusion on the basis of the evidence that death of the deceased is homicidal which is based on proper appreciation of evidence and we are also concur with the finding recorded by the learned trial Court. 10. With respect to the involvement of the appellant in the offence in question, the case of the prosecution is based on circumstantial evidence and there is no eye-witness. 11. The Hon’ble Supreme Court in case of Ravindra Singh Vs. State of Punjab, 2022 (7) SCC 581 has held in para 10 as under:- 8 “10. The conviction of A2 is based only upon circumstantial evidence. Hence, in order to sustain a conviction, it is imperative that the chain of circumstances is complete, cogent and coherent. This court has consistently held in a long line of cases [See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa @ Krishnappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh @ Dalbir Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890)] that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 10.1. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring the offence home beyond any reasonable doubt. 10.2. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed that: “21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....”. 9 12. In the matter of para Surendra Kumar and Another Vs. State of Uttar Pradesh, 2021 (20) SCC 430, the Hon’ble supreme Court has held in 11 and 12 as under:- “11. As the case against the appellants is entirely based on circumstantial evidence, it is necessary to determine whether the available evidence lead only to the conclusion of guilt and exclude all contrary hypothesis. The enunciation on the law of circumstantial evidence stood the test of time since Hanumant Vs. State of Madhya Pradesh1 where Mahajan J., has written as under:- “10…………It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused……………” 12. The nature, character and essential proof required in criminal cases was discussed in detail by Fazal Ali J in Sharad Birdhichand Sarda vs. State of Maharashtra2 and the proposition of law culled out on circumstantial evidence was approved in many subsequent judgments and was recently reiterated by Krishna Murari J., writing the opinion for a three Judges Bench in Shailendra 1 AIR 1952 SC 343 2 (1984) 4 SCC 116 Rajdev Pasvan & Ors. Vs. State of Gujarat & Ors. 3 where it was succinctly laid down as under:- 10 “17. It is well settled by now that in a case based on circumstantial evidence the courts ought to have a conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. Each link unless connected together to form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused.” 13. In the matter of Digambar Vaishnav and Another Vs. State of Chhattisgarh, 2019 (4) SCC 522, the Hon’ble supreme Court has held :- “14.One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt. 15. This Court in Jaharlal Das v. State of Orissa, (1991) 3 SCC 27, has held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be 11 established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. 16. In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied: i.) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; ii.) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and iii.) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. 17. In Varkey Joseph v. State of Kerala, 1993 Suppl (3) SCC 745, this Court has held that suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond reasonable doubt. 18. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this Court, while examining the distinction between 'proof beyond reasonable doubt' and 'suspicion' has held as under: "13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large differ- ence between something that “may be” proved, and something that “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must 12 be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely prob- able doubt, but a fair doubt that is based upon reason and common sense". 14. The Supreme Court in case of Madhu Vs. State of Kerala, 2012 (2) SCC 399 has held in paragraph 5 as under: “5. The care and caution with which circumstantial evidence has to be evaluated stands recognized by judicial precedent. Only circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. In a case resting on circumstantial evidence, the prosecution must establish a complete unbroken chain of events leading to the determination that the inference being drawn from the evidence is the only inescapable conclusion. In the absence of convincing circumstantial evidence, an accused would be entitled to the benefit of doubt.” 15. In the matter of Nagendra Sah Vs. State of Bihar, 2021 (10) SCC 725 in paragraphs 17 and 18 replying upon the golden principles 13 enumerated in case Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 (4) SCC 116, the Supreme Court has held as under: “17. As the entire case is based on circumstantial evidence, we may make a useful reference to a leading decision of this Court on the subject. In the case of Sharad Birdhichand Sarda v. State of Maharashtra2, in paragraph 153, this Court has laid down five golden principles (Panchsheel) which govern a case based only on circumstantial evidence. Paragraph 153 reads thus : - “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made: 19…..Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all 14 human probability the act must have been done by the accused.” (emphasis added). 18. Paragraphs 158 to 160 of the said decision are also relevant which read thus : “158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor-General relying on a decision of this Court in Deonandan Mishra v. State of Bihar, to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor-General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus: 9…….But in a case like this where the various links as started above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, . . . such absence of explanation or false explanation would itself be an additional link which completes the chain." 159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied : (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation. 160. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal case where this Court observed thus: 30……..Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point 15 unfailingly to the guilt of the accused." (emphasis added)” 16. Keeping in view the aforesaid law laid down by the Hon’ble Supreme Court with respect to consideration of the circumstantial evidence in the case we examined the evidence available on record with utmost circumspection. 17. PW-1 Prabha has stated in her evidence that on the date of incident, in the evening, deceased Pavita Tigga @ Chewur Parhin and the appellant Dev Singh @ Deva came to her house. The deceased had taken cooked vegetable for her which she kept. On the date of incident her father had also came to her house for whom she brought liquor and at the same time the appellant and the deceased also came there and then the appellant, the deceased and her father all have consumed liquor. During their consuming liquor some one had made a call to her mobile phone, but it was disconnected. After some time the appellant and the deceased went away and next morning she came to know that Pavita has died. At this stage, she has been declared hostile and she resile from her police statement Ex.-P/2, but she admitted that on the next day when she was coming back, on the way the appellant met her and he informed her that Pavita Tigga has died in the sugarcane field. She scared and came back to her house. From her cross-examination though it comes that she made statement before the Surajpur Court on the instance of police, but the evidence given by her that on the date of incident the deceased and the appellant came to her house, they consumed liquor along with her father and after some time they left the place, could not be rebutted by the defence and it remained 16 unchallenged in her cross-examination. The said part of the evidence PW-1 proved that the deceased was lastly seen with the appellant on same day when her dead body was found. It was such a close proximity of time that in the evening the deceased and the appellant come to her house, consumed liquor and the appellant and the deceased went away and on very next morning dead body of the deceased was found in injured condition. 18. PW-2 Amita Tigga is daughter of the deceased who stated in her evidence that she knew the appellant. On the evening of the date of incident she made telephonic call to her mother and requested her to come to her house on the occasion of Christmas festival. On 25-12- 2020 she again made telephonic call to her, but her mobile was found switched off. When she asked to her sister Lalita she disclosed that her mother had not come to house since last night. Thereafter, her cousin brother Naresh Tigga informed her that her mother has died. When she went on the spot she saw her dead body having injuries on her and various articles were also lying there on some distance. Subsequently, she came to know that the appellant Dev Singh @ Deva was having illicit relation with her mother. In cross-examination she admitted that her mother was also consumed liquor occasionally. She also admitted that from the police persons she came to know that the appellant is having illicit relation with her mother and it is the appellant who committed her mother. 19. PW-3, Lalita Lakda is another daughter of the deceased with 17 whom the deceased was residing on 25-12-2020 at about 10:00 a.m. the Sarpanch of the village has informed her husband about death of the deceased and when she along with her elder sister went on the spot she saw her dead body and various articles were lying there. On her report dehati nalisi Ex.-P/3 was recorded and inquest Ex.-P/5 was prepared. She too has admitted in her cross-examination that her mother was consuming liquor occasionally. 20. PW-4 Suresh Tigga is the brother of the deceased, has stated in his evidence that on 25-12-2020 he was informed by one Gayaprasad about the dead body of the his sister and when he also went on the spot he saw her dead body and certain articles lying there. He telephonically informed police and then the police has started its investigation. He further stated that the appellant used to come to the house of his sister and he caught them in compromising position and at that time he fled away after jumping over the boundary wall and he convinced his sister. Since the appellant used to come to the house of his sister and the plastic bag and gamchha of the appellant was found inside the house of his sister, he suspected that it is the appellant who committed her murder. In cross-examination he admitted that the gamchha and plastic bag are common article which are normally available in the market. With respect to the compromising position of the appellant and his sister, he has not made any complaint to anyone. 21. PW-5 Dev Sai is the person in whose field the dead body was found. After seeing the dead body he informed his father Jwala Prasad 18 and police outpost Khadgawan when the villagers came there they identified the dead body and then Manpur Sarpanch was also informed about the incident. The police persons have also came there along with the sniffer dog. The sniffer dog pointing towards sugarcane field and by passing the sugarcane field he stopped near sugar factory. 22. PW-6 Jwala Prasad has stated in his evidence that on the date of incident he was informed by his son that the dead body was lying in his field. The villagers have identified the dead body and informed the Sarpanch of Manpur and the police. Certain articles have also been seized from the spot which was lying on certain distace from the dead body. Nothing specific has come in his evidence which is vital for its consideration in the present case. 23. PW-7 Naresh Tigga is nephew of the deceased. He stated in his evidence that when he saw the dead body in whatsapp, he identified her and went on the spot. He saw the injuries on her body and suspected that someone has committed murder of the deceased. On 27-12-2020 on being asked by police they had gone to police station where the appellant was already detained by the police. He disclosed in there presence about the incident and the manner in which he committed murder of the deceased. He is witness of memorandum statement Ex.-P/8 and seizure memo from the appellant on the basis of memorandum statement. In his cross-examination he remained firm in saying that the police has recorded the memorandum statement of the appellant in their presence and seized certain articles from the 19 appellant. Nothing could be extracted from his evidence so that his evidence can be disbelieved. 24. PW-7 (correct number is PW-8) Pankaj Lakda is witness to the identification memo Ex.-P/11 and memorandum of the appellant Ex.-P/8. He also witnesses the seizure memo Ex.-P/9 and has duly supported the same in his evidence. 25. PW-12 Maheshwari is Patwari who prepared the spot map Ex.-P/13. 26. PW-13 B.L. Chouhan is Assistant Sub-Inspector of police who recorded the merg intimation Ex.-P/16 and FIR Ex.-P/17. 27. PW-14 Vimlesh Singh is Sub-Inspector of the police and Investigating Officer of the case. He duly proved the investigation which he has conducted in the case. 28. From the aforesaid evidence it comes that the deceased was last seen with the appellant on the date of incident itself with close proximity of time which is proved by PW-1 Prabha. When the deceased was last seen with the appellant in such a close proximity of time and subsequently she was found dead in injured condition, it is for the appellant to explain how the dead body was found in injured condition and when he departed from her company. 29. Section 106 of the Indian Evidence Act imposes a burden upon the appellant to explain the fact within his special knowledge. In the 20 case there is no explanation from the appellant as to when he departed from his company rather the evidence suggests that he was there along with the deceased on crucial point of time. 30. In the case of Nagendra Sah Vs. The State of Bihar (supra) 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.” 31. In the 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 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 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.” 32. In the present case, the memorandum statement of the appellant and seizure of various articles have been proved by PW-7 Naresh Tigga and PW-8 Pankaj Lakda. On the basis of memorandum Ex.-P/8 one 21 gamchha having blood like stains, one pair of hawai chappal and some pieces of wood of mango tree have been seized vide seizure memo Ex.-P/9. From the FSL report Ex.-P/28, it also proved that in the gamchha Article E seized from the appellant on the basis of his memorandum and on the petticoat of the deceased Article D and Saree of the deceased Article G, B group of human blood was found which directly connects the appellant with the offence in question. Further that, in the vaginal slide of the deceased human sperms were found. As has been stated by the witnesses that the appellant was having illicit relation with the deceased, on the date of incident both of them have consumed liquor in the house of PW-1 and left the place and in the next morning the dead body of the deceased was found, but on her vaginal swab semen and sperms were found which further confirms that the deceased was having sexual intercourse. Further the evidence of PW-1 that the deceased was also consumed liquor along with the appellant and father of PW-1 and in the postmortem report the alcoholic smell from the fecal matter were found by the doctor which further confirms that the deceased after consuming liquor left the house PW-1 along with the appellant. 33. From the evidence produce by the prosecution it emerges as the chain of circumstances that the appellant and the deceased were having relation with each other, on the date of incident they had gone to the house of PW-1 Prabha and after consuming the liquor they left her house back and in the next morning the dead body of the deceased was 22 found in injured condition. On the basis of the memorandum statement of the appellant gamchha has been seized in which B group of human blood was found which is the blood found on the petticoat and saree of the deceased also. 34. So far as motive to commit murder is concerned, the Hon’ble Supreme Court has held that even in absence of evidence of motive, criminal act of the appellant can be considered. In the matter of Nathuni Yadav Vs. State of Bihar, 1998 (9) SCC 238 has held in para 17 of the said judgment as under: “17. Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impells a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in Reg v. Palmer (Shorthand Report at page 308 SCC May 1850; thus: "But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties". Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all motive is a psychological phenomenon. Mere 23 fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental Condition existed in the mind of the assailant.” 35. From the foregoing consideration, we do not find any ground to differ with the finding recorded by the learned trial Court and the judgment passed by the learned trial Court is based on proper appreciation of the evidence which is neither perverse nor contrary to record. 36. In the result, the appeal fails and is hereby dismissed. The appellant shall undergo entire sentence as awarded 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 the jail term, 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. Record of the trial Court be returned back along with copy of this judgment for necessary compliance and action, if any. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Aadil