1 2025:CGHC:45585-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1440 of 2024 Balaram Kurrey S/o Ghanshyam Kurrey, aged about 22 years R/o Village Umariya, P.S. Pathariya, District Mungeli Chhattisgarh At Present R/o Bajrang Metalik, Labour Quarter Sarora, P.S. Urla, District- Raipur, Chhattisgarh. ... Appellant versus State of Chhattisgarh Through Station House Officer, Police Station Urla, Raipur, District- Raipur, Chhattisgarh. ... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Virendra Kumar Janardhan, Advocate For Respondent/State : Ms. Soumya Sharma, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha , Chief Justice 08 .09.2025 1. Today, though the matter is listed for hearing on I.A.No. 01/2024, which is an application for suspension of sentence and grant of bail to the appellant, however, considering the fact that the BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.09.09 10:22:14 +0530 2 appellant is in jail since 20.08.2021, with the consent of learned counsel for the parties, the appeal is heard finally. 2. In view of above, I.A.No.01/2024 stands disposed of. 3. This criminal appeal preferred under Section 415 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) is directed against the impugned judgment of conviction and order of sentence dated 27.05.2024 passed by learned 3rd Additional Sessions Judge, Raipur (C.G.) in Sessions Trial No. 435/2021, by which the appellant has been convicted for offence punishable under Section 302 of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life and fine of Rs.200/-, in default of payment of fine, additional rigorous imprisonment for 2 months. 4. The prosecution case in brief is that complainant/informant Akash Ghritalhare lodged a report of untimely and accidental death (Ex.P-1) at Urla Police Station on 20.08.2021 to the effect that he works in Bajrang Alliance Company. On 19.08.2021, his colleague Balaram Kurre @ Bala had an argument and scuffle with Ranjit Mahilange in the afternoon over cooking food, then he explained to both of them. He went to his duty after having dinner at night, both Balaram Kurre and Ranjit Mahilange were in the room. At 7.00 am, Govinda came from duty and saw the room, Rajit Mahilange's body was lying in a blood-soaked condition, then Govinda called him and told him, on which he came to his room and saw that Ranjit Mahilange's body was lying on the ground 3 soaked in blood, there are serious injuries on the head, forehead and body. Balaram Kurre has killed him by making a fatal attack with a solid object. On the basis of the above information, the police registered case number 78/2021 in the register of information of untimely and accidental deaths and as per the information given by informant Akash Ghritalhare, FIR (Ex.P-2) bearing Crime No. 273/2022 was registered against appellant Balaram Kurre under Section 302 IPC. By giving notice (Ex.P-8) to the witnesses, inquest (Ex.P-9) of the body of the deceased Ranjit Mahilange was prepared in front of the witnesses. 5. The prosecution story further goes to show that the application for postmortem of the dead body of the deceased was sent through Ex.P-14 and after the postmortem, the postmortem report Ex.P-16 was obtained. The blood of the deceased spread at the crime scene was kept in a plastic box and sealed. The blood-soaked soil from the crime scene, the old bed-sheet with blood was seized in front of witnesses and seizure sheet Ex.P-10A was prepared. The Patwari prepared the site map Ex.P-4. The appellant was taken into custody and after questioning him, his memorandum statement Ex.P-5 was recorded and on his indication, an old iron pipe used in the crime was recovered and seized as per Ex.P-7 and the said seized pipe was sent to the doctor for query as per Ex.P-13 and query report Ex.P-19 was received. The seized property was sent for chemical examination and statements of witnesses were recorded. The accused was arrested under arrest 4 sheet Ex.P-10 and information regarding the arrest was given to his family members vide Ex.P-15. On completion of investigation in the case, final report/charge-sheet against the appellant was presented before the Court of Judicial Magistrate First Class, Raipur, who passed a surrender order and handed over the case to the Court of Sessions Judge, Raipur, wherefrom the case was received on transfer to the Court of 3rd Additional Sessions Judge, Raipur for due trial in the offence under Section 302 of the IPC. 6. When charges under Section 302 of the IPC was framed against the accused and read out and explained to him, he abjured the allegations made against him. 7. In order to bring home the offence, the prosecution examined as many as 13 witnesses and exhibited 23 documents in support of its case. In his trial under Section 313 of the Cr.P.C, the accused, while expressing his innocence and being falsely implicated, has not made any witness stand in defense. 8. The trial Court upon appreciation of oral and documentary evidence on record and considering that it is the appellant who has committed the murder of deceased Ranjit Mahilange, convicted and sentenced him as aforementioned, against which the instant appeal under Section 415 of the BNSS has been preferred. 9. Mr. Virendra Kumar Janardhan, learned counsel for the appellant vehemently argued that learned trial Court has not properly 5 appreciated the facts and evidence available on record while passing the impugned order. He further argued that learned trial Court has failed to appreciate that before incident, though there was simple dispute in between the appellant and the deceased, but the appellant had neither assaulted upon the deceased nor committed his murder. There is no eye witness in the present case and only on the basis of suspicious, the appellant has been convicted without considering the material available on record, whereas the chain of circumstantial evidence is not connected to each other, which is against the law. There are material contradiction and omission in the case diary statement and court deposition of prosecution witnesses, which cannot be relied upon and the same cannot be made basis for conviction of the appellant. He also submitted that 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, Ms. Soumya Sharma, learned Panel Lawyer, appearing for the respondent/State, supports the impugned judgment and contends that as per case of the prosecution, there was some quarrel took place between the appellant and the deceased before the incident and at the time of incident, only the appellant and the deceased were present in the room and the accused/appellant has not given any plausible explanation under 6 Section 106 of the Evidence Act as the burden is upon the accused since the incident took place in the room wherein only the appellant and the deceased were present. The prosecution has proved its case beyond reasonable doubt by way of evidence. He further submits that looking to the seriousness of crime, the appellant is not at all entitled for any sympathy by this Court, therefore, the appeal deserves to be dismissed. 11. We have heard the learned counsel for the parties and considered their rival submissions made hereinabove and also went through the original records of the 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 Ranjit Mahilange was homicidal in nature ? 14. Dr. M. Nirala (PW-11), who has conducted postmortem over the body of deceased Ranjit Mahilang and given his report vide Ex.P- 16, had deposed that while conducing postmortem, he has found following injuries :- (i) Lacerated wound measuring 11x1.5 cm on the upper part of the forehead to the right frontal region, laterally (outside the body), 7x1 cm in the right eyebrow, 7x2 cm and 2x2 cm in the middle part of the right parietal region, 4x1 cm in the middle part of the right occipital region, 3x2 7 cm in the right mastoid region, 3x2 cm in the middle part of the occipital region, 2x1.5 cm in the middle part of the occipital region on the left side, 1x1 cm in the middle part of the right face, and 2x1 cm and 1.5x1 cm in the left iliac region. (ii) There was swelling in the right upper eyelid. (iii) There was hematoma in the right eye. (iv) More than one linear abrasion was present on the front portion of the neck. (v) Contusion measuring 2x1 cm and 1.5x0.5 cm were present in the left ankle. (vi) An abrasion measuring 3x1.5 cm was present in the right testicle and an abrasion measuring 3x2 cm was present in the left testicle. The Doctor has opined that death was due to hemorrhage and shock as a result of head injury and it was homicidal in nature and occurred prior to 24 hours before the postmortem. 15. Learned trial Court, relying upon the statement of Dr. M. Nirala (PW-11) and postmortem report (Ex.P-16), has come to the conclusion that death of deceased Ranjit Mahilange was homicidal in nature. 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. 16. The next question for consideration would be, whether the trial 8 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-16) of Dr. M. Nirala (PW-11), who conducted postmortem. (ii) As per the case of the prosecution, the fact of death of deceased Ranjit Mahilange was within the knowledge of the appellant as he was present in the room alongwith the deceased when the incident took place, 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. 17. Now, the question would be, whether Section 106 of the Indian Evidence Act, 1872 (for short, the Evidence Act) would be applicable or not? 18. 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.” 19. 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 9 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. 20. 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 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 1 AIR 1956 SC 404 10 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.” 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. 21. The decision of the Supreme Court in 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 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 2 (2021) 10 SCC 725 11 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. 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. 23. 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 3 AIR 1956 SC 460 4 AIR 1974 SC 778 12 against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence. 24. Akash Kumar Ghritlahlre (PW-01), who is the informant of untimely and accidental death (Ex.P-1) of the deceased, on the basis of which, FIR (Ex.P-2) was registered, has deposed that he knew and recognize the accused Balaram Kurrey because he is from his village. He also recognize Ranjit Mahilange (deceased) and Govinda as they are also from his village and also recognize Dhaneshwar Soni, who lives in Raipur and all of them lived together in Quarter No.6 of Bajrang Metallic Company. He further deposed that the incident took place on 19th of the year 2021 during the Rakhi festival. He, Ranjit Mahilange (deceased) and the accused Balaram were in the same quarter on the said date. He was preparing to go to his duty. The appellant and Ranjit Mahilange (deceased) had a festival holiday, so both of them were in the room. Govinda was in another room of the Company's quarter. He went to his duty at around 8 P.M. The appellant and Ranjit Mahilange were in quarter No. 6. He also deposed that Govinda called him the next day at 05:30-06:00 am and told him that Balaram had killed Ranjit Mahilange in room No. 6 and fled. When he returned from his duty to quarter No. 6, he saw Ranjit Mahilange's dead body lying near the bed. In para 7 of his evidence, he has admitted that he, deceased Ranjit Mahilang and appellant Balaram Kurre lived together in Quarter No. 6 and cooked together. He also admitted that Govinda and Dhaneshwar 13 cooked separately. He admitted that before going on duty, he, Ranjit Mahilang and the appellant were together in Quarter No. 6, and before leaving for duty, he told both of them to behave properly. In para 8 of his evidence, he has admitted that he told both of them to behave properly because there was a slight argument between the appellant and deceased Ranjit Mahilang over cooking lunch in the afternoon. 25. The deceased and the appellant lived in the room where the dead body of the deceased was lying. The First Information Report (Ex.P-2) shows that Akash umar Ghritlahlre went to his duty and at that time, the appellant and the deceased both were present in the room and when Govinda came back from duty at 7 A.M. he saw that deceased Ranjit Mahilange was lying in a blood soaked condition in the room. There was serious injuries on the head, forehead and body. In the present case, as per FSL report (Ex.P- 23), human blood was found on jeans pant (Article D1) and full- shirt (Article D2) seized from the appellant. 26. In the present case, the deceased was found dead in his room and at that time, only the appellant and the deceased were present in the room and as per the provision of Section 106 of the Evidence Act, the burden to prove that the appellant was not present in the room / house at the time of incident and he was present elsewhere is on the appellant, which he admittedly failed to prove in his statement under Section 313 CrPC. 14 27. Considering the evidence of Dr.M.Nirala (PW-11), taking into consideration that the burden of proving a plea specially set up by the appellant which may absolve him from criminal liability, certainly lies upon him and he has not offered any plausible explanation, further taking into consideration that the appellant was required to explain as to how the deceased suffered such injuries, as the dead body of the deceased was found lying inside the room of the appellant, which he has admittedly not explained in his statement under Section 313 CrPC and the material collected by the prosecution, we are of the considered opinion that the above chain of circumstances is complete and leads only to one conclusion that it was the accused/appellant who caused death of the deceased. The view taken by learned trial Court that the appellant is the author of the crime is a pure finding of fact based on evidence available on record. We hereby affirm that finding. 28. In the result, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. The conviction and sentence as awarded by the trial court to the appellant is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed. 29. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 15 30. 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. 31. 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/- Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Bablu