1 2025:CGHC:318-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1354 of 2024 Mangalu Panika @ Mangal S/o Jeetram Panika Aged About 37 Years R/o Tilokhan, P.S. Kelhari, District M.C.B. Chhattisgarh. ... Appellant(s) versus State Of Chhattisgarh Through Station House Officer, Police Station Kelhari, District Korea, C.G. ... Respondent(s) For Appellant(s) : Mr. Ramsevak Soni, Advocate For Respondent(s) : Mr. Shashank Thakur, Dy. A.G. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 03.01.2025 1. Heard Mr. Ramsevak Soni, 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 415(2) of the B.N.S.S. is directed against the impugned judgment of 2 conviction and order of sentence dated 09.07.2024 passed by the learned First Upper Sessions Judge, Manendragarh, District- Korea (C.G.) in Session Trial No. 03/2024, by which the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life with fine amount of Rs. 500/-, in default of payment of fine additional rigorous imprisonment for 02 years and under Section 201 of the Indian Penal Code (IPC) and sentenced to undergo Rigorous Imprisonment for 2 years and fine amount of Rs. 200/-, in default of payment of fine, additional R.I. for 06 months. 3. Case of the prosecution, in brief, is that on 22.11.2023, the appellant Mangalu Panika, resident of village Tilokhan appeared in police station Kelhari and stated that he was working as a driver in Janta Super Bus. About 10-15 days ago, he had gone to Manendragarh to drive the bus. His wife Somvati was alone at home. On 21.11.2023, when he returned home at about 08:30 pm, the door of the house was slightly open and on going inside and looking, his wife Somvati was lying on the floor next to the cot on her back, and on touching and shaking her, he found that she was not breathing and Somvati was dead. He informed the same to his father Jeetrai, who came with the neighbour Phoolsai and saw the deceased. He further stated that his Motorcycle bearing No. CG-16/CL- 9871 was also not at home, and on giving verbal information regarding not having any information as to who took the motor cycle and killed his wife, got Merg Intimation No.-28/23 (Ex.P-20) registered at Police Station Kelhari. After going to the spot and giving notice Ex.P-12A to the witnesses, dead body panchanama (Ex.P-11A) was prepared and the body was sent for examination along with application (Ex.P-21) with 3 constable Vikas Kujur to CHC Kelhari wherein, the postmortem was conducted by Dr. Mahesh Singh (PW-11) who found the following injuries:- (i) Bruise mark (2.5 x 1 inch) on both the sides of the neck of the deceased. (ii) Superficial abrasion like friction rub (3 x 0.5 inch) on the front part of the neck. (iii) Fracture of Trachea and larynx bones. (iv) Red blood was present in the windpipe and her other internal organs were congested. He opined that the cause of death was throttling, mode of death is asphyxia and the nature of death is homicidal. 4. After examination of the dead body of the deceased, it was handed over to the relatives for last rites. After inquest, on 27.11.2023, First Information Report under Crime No.97/23 under Section-302 IPC was registered against unknown person at Police Station Kelhari and its judicial copy (Ex.P-22A) was sent to Judicial Magistrate First Class, Manendragarh. During investigation on 28.11.23, map of incident spot (Ex.P-13) was prepared, statement of witness Kunwar Singh Ex.P-14, Phoolsai Ex.P-9, Jaikaran Ex.P-8, Subhan Ex.P-5, Sugreev Ex.P-10, Raipal Ex.P-1, Sonu Singh Ex.P-24, Chandrabhan Ex.P-23 and Rammanohar were recorded and as per their statement, accused Mangalu Panika was taken into custody and his memorandum statement (Ex.P-2) was recorded in front of witnesses and on the basis of that, from his house in village Tilokhan, old blue coloured piece of jeans pant was 4 seized as per seizure memo Ex.P-3 and the accused was arrested as per arrest memo Ex.P-4 and information (Ex.P-15) was given to his family members. On 30.11.23, application (Ex.P-18A) was sent to CHC Kelhari for querying the pieces of jeans pants seized from the accused and report (Ex.P-18) was attached. Application (Ex.P-25) was sent to Tehsildar Kelhari for preparing the map of the place of occurrence and map (Ex.P- 16) was attached. Sandisk pendrive article (A-1) prepared by Khurshid Ahmed, director of Arman Photo Studio was seized from him as per Ex.P- 6. On 08.11.23, application (Ex.P-26) was sent for providing certificate to Khurshid Ahmed and certificate (Ex.P-27) under section 65B of Evidence Act was attached to it. 5. After investigation, charge-sheet was presented before Judicial Magistrate First Class Manendragarh on 19.12.23 which was handed over to Second Additional Sessions Judge Manendragarh on 26.12.23. On 11.01.24, the case was transferred to this court for disposal by the learned Sessions Judge, Baikunthpur Korea wherein, charges against the accused under Sections 302, 201 IPC were framed. 6. After the evidence was composed, read out and explained to him, he denied committing the crime and claimed trial. After the evidence, when the accused was examined under Section 313/281 of the Cr.P.C., he said that he was innocent and that he had been falsely implicated, but no evidence was given in his defence and demanded trial. 7. In order to bring home the offence, the prosecution examined as many as 19 witnesses and exhibited 27 documents. 8. The learned trial Court, upon appreciation of oral and documentary 5 evidence on record opining that it is the appellant who has committed the murder of his wife, convicted and sentenced him under Section 302 and Section 201 of the IPC, against which the instant appeal under Section 415(2) of the B.N.S.S. has been preferred. 9. Mr. Ramsevak Soni, learned counsel for the appellant vehemently argued that 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 completed to each other. He further submits that the impugned judgment of conviction and sentence is illegal & contrary to law and hence liable to be set-aside. The Appellant has been falsely trapped in the present case based on the balled and bare suspicion. As per the materials available on record, it appears that there was cordial relationship between the Appellant and deceased. Not a single iota of evidence available on record to show that the Appellant had committed the murder of his wife. On the contrary, appellant himself went to the Police Station and registered Merg Intimation with respect to the death of his wife. Further, as per the evidence adduced by the prosecution in this case, it appears that who has committed the murder of deceased is not proved. The learned trial Court relief upon the statement given by the Subhan (PW-2) and Ram Manohar (PW-3), who are not reliable and trustworthy. Only the Investigating Officer has proceeded whole proceeding of the case and has arrested the appellant without any intimation to him and seizure memo is suspected. Further it clarified that during investigation, he has not found that the deceased died in homicidal death. Thus looking to the entire evidence available on record, there is not a single iota of evidence to show that the appellant had committed murder 6 or involved in this crime. 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. 10. On the other hand, learned Deputy Advocate General supports the impugned judgment and relied upon the judgment passed by the Hon’ble Apex Court in the matter of Wazir Khan vs. State of Uttrakhan (2023) 8 SCC 597 and submits that facts of the present case are identical to that of the case of Wazir Khan (supra) wherein, the Honble Supreme Court has dismissed the appeal filed by the appellant therein. He further submits that the statement of the prosecution witnesses clearly proved that, the deceased had been murdered by the accused/present appellant, as it has also been observed by the learned trial Court that, as per the postmortem report, (PW/11) Dr. Mahesh Singh/Medical Officer has clearly opined that deceased died on Asphyxia due to throttling and the nature of death was homicidal in nature. The learned Trial Court has appreciated the entire evidence available on record including the deposition of witnesses and thereafter, arrived at the finding of guilt of the appellant, which is supported by the credible and cogent evidences, as the learned trial Court has specifically observed that, from the medical evidence, it is clearly proved the death of the deceased is homicidal in nature. Thus, looking to the gravity of the offence and the quality of the evidences, there is no reason for showing any leniency to the present appellant, thus, the trial Court has rightly convicted the appellant for the offence punishable under Section 302 and under Section 201 of the IPC and therefore, the appeal deserves to be dismissed. 7 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. 12. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 13. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased to be homicidal in nature ? 14. The trial Court, relying upon the statement of Dr. Mahesh Singh (PW/11), who has conducted postmortem on the body of deceased, vide Ex.P/17, has clearly come to the conclusion that mode of death is asphyxia due to throttling and the nature of death is homicidal. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellant. We hereby affirm the said finding. 15. The next question for consideration would be, whether the trial Court has rightly held that the appellant is author of the crime by relying upon the following circumstances:- (i) Homicidal death was proved by the prosecution as per postmortem report (Ex.P/17) of Dr. Mahesh Singh (PW/11), who conducted postmortem. (ii) As per the case of the prosecution, the fact of death of deceased was within the knowledge of the appellant, however, there was no any explanation 8 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. The question for consideration would be, whether Section 106 of the Evidence Act would be applicable or not? 17. Section 106 of the Indian Evidence Act, 1872, states as under: - “106. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 18. This provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned. 19. In the matter of Shambhu Nath Mehra v. The State of Ajmer1, their Lordships of the Supreme Court have held that the general rule that in a criminal case the burden of proof is on the prosecution and Section 1 AIR 1956 SC 404 9 106 of the Evidence Act is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution, to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The Supreme Court while considering the word “especially” employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J., observed as under: - “11. … The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P.49 (B).” 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 10 a very exceptional class of case, the burden is on the prosecution and never shifts. 20. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar2 in which it has been held by their Lordships of the Supreme Court as under: - “22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference. 23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge 2 (2021) 10 SCC 725 11 the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.” 21. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab3, while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him. 22. The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with 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. 3 AIR 1956 SC 460 4 AIR 1974 SC 778 12 23. In the present case, homicidal death due to throttling and the nature of death being homicidal has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Dr. Mahesh Singh (PW/11) and the postmortem report (Ex.P/17) 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. Mahesh Singh (PW/11), Subhan (PW/2) and Ram Manohar (PW/3) and further, as per the statement of PW-1 Raipal and PW-4 Jaikaran, it is evident that the appellant is the husband of the deceased and they are neighbor of the deceased and the deceased was lastly seen together with the accused and then she was found dead. 25. Dr. Mahesh Singh (PW/11), who conducted the postmortem of the deceased vide Ex.P/17 has opined that the deceased died due to strangulation, mode of death is asphyxia and the nature of death is homicidal. It has been also opined by the concerned Doctor that a piece of blue coloured pant seized from the appellant was queried and brought before him along with the application for giving the report. Its length was 24 inches, width in the middle was 7.5 inches and width at the bottom was 7 inches. He gave a report (Ex.P-18) that the death of the deceased could have been caused by strangulation of the deceased with the said piece of jeans pant. 26. Subhan (PW/2), has stated that she knows the accused Mangalu Panika alias Mangal and the deceased Somvati is her sister and belongs to the same village. She died in November. After the death, she went to 13 Mangalu's village where when the police questioned Mangalu near the pandal, he told that he had killed Somvati by strangulating her with a piece of jeans and the piece of jeans was taken out from the house and seized in his presence. In her presence, the accused Mangalu Panika was arrested as per arrest memo (Ex.P-4). She admitted that after the breakdown of Somvati's first marriage, she was living with the accused Mangalu Panika of village Tilokhan as his wife and expressed that the relationship between Mangalu and Somvati was not good. 27. Ram Manohar (PW/3) stated that he knew accused Mangalu Panika alias Mangal and deceased Somvati. Somvati was his sister being his maternal aunt's daughter and Mangalu was her husband. About three months ago, Sarpanch Kunwar called him and told him about Somvati's murder and asked him to come. Somvati's dead body was in his house next to the cot. There was a slight mark of strangulation on her neck. Police also reached there with him and examined Somvati's entire body. When police interrogated Mangalu there, he said that he had gone home after drinking alcohol and due to an argument between the two and being unable to bear it, he strangled Somvati with the cloth of jeans hanging there. He also showed the place where the cloth was hung. Then the police wrapped the piece of jeans in paper etc. and took it away. His signature is on memorandum statement (Ex.P-2) and seizure memo (Ex.P-3). Accused Mangalu Panika was arrested in his presence and arrest memo was prepared. 28. 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? 14 29. In this regard, the findings of the trial Court is that the deceased is the wife of the accused/appellant and from the statements of PW-1 Raipal, PW-2 Subhan, PW-3 Rammanohar and PW-4 Jaikaran, who are neighbor of the deceased, it has come to knowledge that the deceased was lastly seen together with the accused and then she was found dead. After this, the memorandum and seizure become extremely important, which have been fully supported by both the witnesses Suman Singh and Ram Manohar (Ex.P-2), who are the sister of the appellant. Further, the incident had taken place inside the house and in his memorandum statement (Ex.P/10), the accused/appellant has also admitted that he has murdered his wife by strangulating her by his jeans pant and hid it inside his home. Also, Dr. Mahesh Singh (PW-11), who has conducted the postmortem has opined that the cause of death was strangulation, mode of death is asphyxia and the nature of death is homicidal which amply reveal that such an incident of murder had taken place. Thus, there is unbreakable chain of circumstantial evidences against the accused appellant, which clearly indicate the guilt of accused/appellant. There was motive for the appellant to cause death of the deceased as he was frustrated with the frequent quarrel with his wife. 30. A careful perusal of the aforesaid findings recorded by the trial Court would show that the prosecution has established that, i. death of deceased was homicidal in nature; ii. on the basis of the memorandum statement of the accused, jeans pant was recovered from the house of the appellant; 15 iii. as per the report (Ex.P-18), it is evident that death of the deceased have been caused by strangulation of the deceased with the said piece of jeans pant. iv. Motive behind causing the incident was proved by the prosecution. v. it is the appellant who has murdered his wife by strangulating her by ligature. 31. Considering the aforesaid evidence of the witnesses as well as the circumstances and further the fact that the dead body of the deceased was found at her home and deceased is the wife of the appellant and deceased and accused/appellant were living together amply shows the incident of murder and thus, the incriminating circumstances proves the involvement of accused/appellant and the accused/appellant has not offered any explanation under Section 313 of the Cr.P.C. and in his memorandum statement, the accused/appellant has also admitted that he has murdered his wife by strangulating her with his jeans pant and hid the same in his house. Also, from the statements of Ram Manohar and Suman Singh (PW-2), who are the sisters of the deceased, it has come to knowledge that the accused often used to quarrel. Also, Dr. Mahesh Singh (PW-11), who has conducted the postmortem has opined that the cause of death was strangulation, mode of death is asphyxia and the nature of death is homicidal which amply reveal that such an incident of murder had taken place. Thus, there is unbreakable chain of circumstantial evidences against the accused appellant, which clearly indicate the guilt of accused/appellant and the circumstances clearly 16 indicate that it was the appellant alone who had committed the murder of the deceased. Therefore, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted the accused/appellant for the offence punishable under Section 302 and 201 of the IPC. Thus, we do not find any illegality or irregularity in the findings recorded by the trial Court. 32. For the foregoing reasons, the criminal appeal being devoid of merit and is liable to be and is hereby dismissed. 33. It is stated at the Bar that the appellant is in jail since 28.11.2023, he shall serve out the sentence as ordered by the learned trial Court. 34. 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 Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Manpreet