1 2025:CGHC:8593-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1589 of 2021 Tarachand Kurre S/o Late Narad Prasad Kurre Aged About 29 Years R/o Village Dhaurabhatha, Police Station Hirri, District Bilaspur Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through The Station House OfÏcer, Police Station Hirri, District Bilaspur Chhattisgarh. ... Respondent For Appellant : Mr. Vipin Singh Thakur, Advocate. For Respondent(s) : Mr. Malay Jain, Panel Lawyer Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 19/02/2025 1. The appellant has preferred this appeal under Section 374(2) of Cr.P.C. questioning the impugned judgment dated 18.11.2021 passed in Sessions Trial No. 49 /2020 by which the learned 5th Additional Sessions Judge, Bilaspur, District Bilaspur, has convicted and sentenced the appellant as under: Conviction under Section : Sentence 302 of the Indian Penal Code (for short, the IPC) : Life imprisonment with fine of Rs. 1000/-. In default, 100 days imprisonment. 2 201 of the IPC : Rigorous imprisonment for 5 years with fine of Rs. 500/-. In default, 50 days imprisonment. 2. The accused Tarachand Kurre was charged for the offences under Sections 302 and 201 of the IPC for allegedly murdering his wife, namely Lalita Bai Kurre by strangulating with belt on 10.11.2019 at about 18:00 hours at village Dhaurabhata, and tried to cause disappearance of the evidence by portraying as if the deceased had committed suicide by hanging and had taken the deceased to the hospital contending that the deceased had fainted because of high blood pressure. 3. The case of the prosecution in brief is that, on 10.11.2019 at 21:00 hours, the appellant along with Vinod Diwakar appeared at the Hirri Police Station and lodged an oral report that the appellant’s wife Lalita Bai was a patient of high blood pressure. The deceased was at home on 10.11.2019 and the appellant had gone to Bilha to bring wood since 3:00 p.m. When the accused returned home at around 6:00 p.m., the deceased had fainted. She was taken to CHC Bilha and shown to the doctor, but she was declared dead. A memo was sent to the Police Station through the accused. In the said memo, as the Doctor had written ‘brought dead’, merg intimation No. 37/2019 was recorded under Section 174 of the Cr.P.C. Thereafter, during the merg investigation, there was a black mark found on the neck of the deceased, pieces of green bangles were scattered on the floor at the scene of the incident, hair was fallen, the cloth of the Diwan was in disarray and the belt was lying on the diwan. The deceased's maternal family expressed the suspicion of murder. The postmortem report also indicated that it was a suspected murder. After the inquest, spot inspection, recording of witness statements and postmortem report, the death of deceased was found to 3 be homicidal. The Police of Police Station Hirri registered a crime under Section 302, 201 IPC against an unknown person under crime number 180/19. During the investigation, the deceased's husband/accused Tarachand Kurre confessed killing of his wife in presence of the villagers due to her illicit relationship with his brother-in-law. When the police interrogated the accused, in the memorandum statement recorded under Section 27 of the Evidence Act, the accused stated that he killed his wife Lalita Bai by strangulating her with a belt because of her illicit relationship with her brother-in-law. After finding sufÏcient evidence against accused Tarachand Kurre and after completion of the investigation, charge sheet bearing Number 7/2020 was instituted for trial on 10.02.2020. 4. Charges were framed against the appellant/accused on 16.03.2020 under Sections 302 and 201 (Part-II) of the IPC. The appellant abjured the guilt and prayed for trial. 5. In order to bring home the offence, the prosecution has examined as many as 23 witnesses; namely, Ragini Kurre (PW-1), Anjali Kurre (PW- 2), Smt. Titari Bai (PW-3), Rajaram Patre (PW-4), Smt. Shati Patre (PW- 5), Om Prakash Kurre (PW-6), Deepak Kurre (PW-7), Smt. Jam Bai Patre (PW-8), Radheshyam Patre (PW-9) Smt. Kamla Bhaskar (PW-10), Heera Singh Sahu (PW-11), Bhagirathi Sonwani (PW-12), Shiv Kumar Yadav (PW-13), Manohar Kosle (PW-14), Duraj Ram Kurre (PW-15), Smt. Subhadra Chandra (PW-16), Dilharan Joshi (PW-17), Bharat Prasad Kurre (PW-18), Gokul Prasad Kurre (PW-19), Ashish Pandey (PW-20), Dr. Anubhav Verma (PW-21), Arjun Dhritlahre (PW-22) and Bodhiram Dheere (PW-23) and exhibited as many as 35 exhibits. In defence, the appellant got the statements of the witnesses namely 4 Rajaram Patre, Smt. Shanti Bai Patre, Jam Bai Patre and Radheshyam Patre, exhibited as Exhibits D/1 to D/4. 6. The statement of the accused under section 313 CrPC was recorded on 21.09.2021. He stated that he was innocent and has been falsely implicated in this case. 7. The learned trial Court, after considering the evidence on record, convicted and sentenced the appellant/accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict. 8. Mr. Vipin Singh Thakur, learned counsel for the appellant submits that the case is based on circumstantial evidence and there is no eye witness to the alleged incident. There is omission and contradiction in the statement of the prosecution witnesses and the conviction is based on the basis of so called confession made in presence of the villagers. The disclosure made by the accused cannot automatically lead to the conclusion that the offence was committed by the appellant. The burden lies on the prosecution to prove their case independently. Some of the prosecution witnesses have even turned hostile. Even the presence of the appellant at the time of death of the deceased has not been proved. The prosecution has failed to prove the guilt of the appellant beyond reasonable doubt and hence, he deserves to be acquitted. 9. On the other hand, Mr. Malay Jain, earned Panel Lawyer appearing for the State/respondent submits that the learned Court below was fully justified in convicting and sentencing the appellant as mentioned in the opening paragraph. There is ample evidence on record to hold the 5 appellant guilty of the offence. The order passed by the learned Court below needs no interference and the appeal be dismissed. 10. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 11. There is no doubt that the death of the deceased was homicidal in nature which is evident from the postmortem report (Exhibit P/27) which states that abrasive wound was found on the right side of the neck with slight hemorrhages. Another abrasive wound was found on the left side of neck. Dr. Anubhav Verma (PW-21) who had conducted the postmortem, has opined that the mode of death was asphyxia (inability to breath) suggesting suspected homicide. Viscera was sent for chemical analysis and circumstantial evidence. The said witness has also given a query report stating that from the leather belt seized from the place of incident, death can occur due to throttling due to asphyxia. Hence, there remains no manner of doubt that the death of the deceased was homicidal in nature. 12. As per the prosecution, the appellant himself had taken the deceased to the hospital stating that she had fainted at home. On the basis of the information given by the Doctor, merg intimation (Exhibit P/30) was recorded and while recording of the merg intimation, the appellant had informed the police that the deceased was patient of high blood pressure and that when he returned home, he found her wife in an unconscious condition. The Doctor had reported that the deceased was brought dead in the hospital. From the said circumstance, it is evident that the deceased had already died before she was brought to the hospital and that she was at her own house before her death. 6 13. The next point for consideration would be, whether the trial Court has rightly held that the appellant is author of the crime as there was no explanation given by the appellant in his statement under Section 313 of the Cr.P.C as to how the deceased was found dead in his house. Thus, burden of proof was on the appellant to explain such circumstance, which he failed to explain. 14. 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.” 15. 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. 16. 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 difÏcult, for the 1 AIR 1956 SC 404 7 prosecution, to establish facts which are “especially” within the knowledge of the accused and which he could prove without difÏculty 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).” 17. 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. 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 2 (2021) 10 SCC 725 8 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.” 18. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab3, while considering the provisions contained in Sections 103 and 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. 3 AIR 1956 SC 460 9 19. 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. 20. The appellant has further tried to take a plea of alibi stating that he was not at home and he came back home when a phone call was made to him by Ragini Kurre (PW-1). He stated that he was alongwith Bhagirathi Soniwani (PW-12) and Arjun Dhritlahre (PW-22). Ragini Kurre (PW-1), wife of appellant’s brother, Anjali Kurre (PW-2), sister of the appellant and Titri Bai (PW-3), mother of the appellant, have stated that the appellant was not at home and that the deceased was found lying unconscious in the bushes in the backyard of their house. However, it has been admitted that the appellant and the deceased used to quarrel on the ground that the deceased always asked the deceased to take her to her brother-in-law’s (Jija) house. The prosecution witnesses namely Rajaram Patre, brother of the deceased (PW-4), Shanti Bai Patre, sister- in-law (Nanand) of the deceased (PW-5), Smt. Jam Bai, sister-in-law (Nanand) of the deceased (PW-8), Radheshyam Patre, brother of the deceased (PW-9) have stated that the appellant used to quarrel and assault the deceased after consuming liquor and also used to demand dowry. It was also stated that the deceased was hail and hearty and that she has been done to death by the appellant and the family members of the appellant. 21. The police had made seizure of the belt by which the deceased was done to death and Dr. Anubhav Verma (PW-21) has, in his query report, 4 AIR 1974 SC 778 10 also opined that the same could have been used for strangulating the deceased. The appellant has tried to take a false plea of alibi but he has not been able to prove that he was not at home when the deceased allegedly fainted and was elsewhere. The broken bangles of the deceased was found inside the house of the appellant and the belt used for commission of the crime was also seized from inside the house as is evident from Exhibit P/12. The appellant has also tried to suggest that the deceased died because of high blood pressure but could not substantiate the said assertion. On the contrary, the Doctor found the deceased dead when she was brought to the Community Health Centre by the appellant himself and further, in the postmortem report, abrasive injuries have been found on the neck of the deceased and the nature of death has been reported to be suspected homicide as the cause of death was asphyxia. 22. In the memorandum (Exhibit P/20), the appellant had clearly stated that the deceased and her brother-in-law (Jija) had illicit relationship and on the date of incident also, she had asked the appellant to take her to her Jija’s house and was quarelling with him. Being infuriated, he throttled the neck of the deceased with the belt and firstly, he informed the people around his house that she had committed suicide, but when he could not hang her body, he called the ambulance stating that her blood pressure had increased and had to be taken to the hospital and had taken to Bilha Hospital where she was declared ‘brought dead.’ 23. The appellant had the motive to cause murder of the deceased as the deceased used to ask the appellant to take her to her brother-in-law’s (Jija’s) house very often and hence, the appellant suspected that the deceased and her Jija had some extra marital affair. The learned trial 11 Court has dealt with all the issues in quite detail and from perusal of the evidence of the witnesses and the materials available on record, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellant/convict. 24. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed. 25. The appellant is stated to be in jail. He shall serve out the remaining part of the sentence as has been awarded to him by the learned trial Court. 26. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentences 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. 27. Let a certified copy of this judgment alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) JUDGE CHIEF JUSTICE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.02.25 14:34:59 +0530