1 2025:CGHC:5195-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1452 of 2019 1 - Naresh Kumar Khunte S/o Chheduram Khunte, Aged About 25 Years R/o Village Aurda, P.S. Kharsiya District Raigarh Chhattisgarh, District : Raigarh, Chhattisgarh ... Petitioner(s) versus 1 - State of Chhattisgarh Through Police Station Kharsiya, District Raigarh Chhattisgarh, District : Raigarh, Chhattisgarh. ... Respondent(s) For Appellant : Shri Avinash K Mishra, Advocate. For Respondent : Shri Shailendra Sharma, Panel Lawyer. Hon'ble Shri Justice Ramesh Sinha, CJ Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 29.01.2025 Per, Ravindra Kumar Agrawal, J. 1 The present appeal under Section 374 (2) CrPC has been filed by the appellant against the impugned judgment of conviction and order of sentence dated 24.05.2019 passed by the Vth Additional Sessions Judge, Raigarh, in Sessions Case No.76/2018 whereby the appellant has been convicted and sentenced as under : Conviction Sentence 302 IPC Life imprisonment with fine of Rs.1000/-, in default of payment of fine, additional RI for six months 201 IPC 7 years RI with fine of Rs.1000/-, in default of payment of fine, additional RI for six months Digitally signed by INDRAJEET SAHU Date: 2025.02.05 18:01:05 +0530 2 2 Brief facts of the case are that, the deceased Teejmat Bai was residing with the appellant after performing Churi marriage with him since two months back. Both of them were working in Brick Kiln. The appellant suspected her fidelity and used to quarrel with her. On 28.03.2018 the deceased Teejmat was found dead in hanging condition and merg intimation was lodged by the appellant on 28.03.2018 at about 22:45 hours. The appellant informed the police in the merg intimation that when he returned after purchasing medicine for his wife as she was suffering from headache, he found his wife dead inside the room. The inquest Ex.P/1 of the dead body of deceased was prepared in presence of witnesses and the body was sent for postmortem to Community Health Centre, Kharsiya where PW13 Dr. Smt. Lalita Rathiya and Dr. S.K. Agrawal conducted postmortem of the dead body of deceased and gave report Ex.P/11. During postmortem of the dead body, the doctor noticed following injuries : Antemortem abrasion 1x1/2cm lat. Left eye. Abrasion brim of nose 5x1/2 x1/2 cm extending from medial corner of left eye to medial corner of right eye. Abrasion 9X1/2 cm below left eye. Abrasion 2x1/2 cm upper eyelid. Fingernail mark semi lunar abrasions of left suproclavicular region. 9 fingernail marks semi lunar abrasion below thyroid cartilage ant. Neck. Abrasion 15X1/2 cm anterolateral aspect of left side of neck below thyroid cartilage. Abrasion 18X1 cm just above thyroid gland extending from left lat. Neck to right lat. Neck. Abrasion 22x1 cm below left ear lobul to nap of neck below occipital protuberance right side ligature mark depressed with groove 33X2 cm encircle around neck below occipital protuberance. Tongue not protruded salivation mark not present. Planter extension not present.” 3 The doctor opined all the injuries to be antemortem in nature. Ligature mark is antemortem in nature and cause of death is due to strangulation and homicidal in nature. FIR Ex.P/9 was registered against the appellant for the offence under Sections 302 and 201 IPC. 3 Spot map Ex.P/3 was prepared by police whereas Ex.P/12 by the Patwari. The appellant was taken into custody on 02.04.2018 and his memorandum statement Ex.P/8 was recorded. One Sari of the deceased, used for strangulation, was seized from the appellant vide seizure memo Ex.P/4. The said Sari was sent for its querry report to Dr. Smt. Lalita Rathiya, PW-13, who after its examination gave query report Ex.P/14 and opined that no bloodstain seen on Sari. Knot was also not found in the Sari. 4 The statement under Section 161 CrPC of the witnesses were recorded. After completion of usual investigation, charge sheet was filed against the appellant for the offence under Sections 302 and 201 IPC before the Judicial Magistrate First Class Kharsiya. The case was committed to the Court of Sessions Judge Raigarh from where it has been transferred to the trial Court for its trial. 5 The trial Court has framed charge against the appellant for the offence under Sections 302 and 201 IPC. The appellant abjured his guilt and claimed trial. 6 In order to establish charge against the appellant, the prosecution has examined as many as 15 witnesses. Statement under Section 313 CrPC of the appellant has also been recorded in which he denied the circumstances appears against him, plead innocence and have submitted that he is innocent and falsely implicated in the offence. He also stated that his wife Teejmat Bai wanted to keep him with her in her parents house and when he refused to reside in her parent’s house, she committed suicide by hanging. 4 7 After appreciation of oral as well as documentary evidence led by the prosecution, the trial Court has convicted the appellant and sentenced him as mentioned in opening para of this judgment. Hence this appeal. 8 Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material inconsistencies in the evidence of witnesses which cannot be made basis to convict him for the alleged offence. At the time of incident, the appellant was not in his house and had gone to purchase medicine. When he returned back from there, he found that his wife has committed suicide. He himself gave merg intimation to police. There was no motive to kill his wife. The prosecution has also been failed to prove that at the relevant point of time the appellant was in his house or his presence was there nearby the places. Thus, the liability cannot shifted upon him under Section 106 of the Evidence Act to explain the injuries found on the body of the deceased. Therefore, the evidence produced by the prosecution is not sufficient to hold him guilty and he is entitled for acquittal. 9 On the other hand, the counsel for the State opposes the submissions made by the counsel for the appellant and have submitted that there is ample evidence against the appellant to convict him for the alleged office, but for minor omissions or contradictions, the evidence of victim as well as other witnesses are fully reliable and conviction can be made on the basis of evidence came on record. The conduct of the appellant itself shows his guilt that in the merg intimation he disclosed that when he came after purchasing medicine he saw his wife lying dead inside the room whereas in his 313 CrPC statement he has 5 stated that when he refused to reside with his wife in her parents house, she committed suicide. Further, the doctor has opined that death of deceased was due to strangulation and homicidal in nature. Numerous injuries were found on the body of deceased which has not been explained by the appellant and changing his stand of defence would make his defence more suspicious. The dead body of deceased was found inside the room in injured condition that too death was due to strangulation. Therefore, the appellant has to explain the injuries found on the body of deceased as also her homicidal death. From the evidence of witnesses, the presence of appellant with the deceased at the relevant point of time has duly been proved and he has not offered any explanation about his non presence on the spot, therefore, the trial court has rightly convicted the appellant and his sentence needs no interference. 10 We have heard the counsel for the parties and perused the records of the case. 11 Regarding nature of death of deceased as to whether her death was homicidal or not, PW/1 Smt. Rambai & PW/10 Smt. Parvati, who are the witnesses to the inquest Ex.P/1, have deposed that they had seen the dead body and injuries on her neck. The inquest was prepared in their presence by the Naib Tehsildar and the appellant also informed that deceased Teejmat Bai had committed suicide by hanging. From FIR it also appears that appellant himself lodged merg intimation to the police on 28.03.2018 that when he came back to his house after purchasing medicine, he saw that his wife already died and he informed about her death to Dhanbai, Pawan Kotwar and Sothin Bai. 6 12 PW-13 Dr. Lalita Rathiya, who conducted the postmortem of the dead body of deceased have stated in her evidence that she along with Dr. S.K. Agrawal conducted the postmortem of dead body on 29.03.2018 and found various injuries on her body. Ligature mark was also found on neck of the deceased which were antemortem in nature and she opined that cause of death is strangulation and nature of death to be homicidal. In her cross examination, she admits that she disclosed in her postmortem report about nail injuries on the neck of deceased but has not disclosed its measurement. She remain firm in saying that injuries were antemortem in nature and visible. She firmly denied that her disclosure of nature of death to be homicidal is based on assumption. 13 The trial court after considering the evidence available on record as well as the postmortem report, came into conclusion that deceased was died by strangulation which is homicidal in nature and the said finding is neither perverse nor contrary to record. 14 The next question for consideration would be the involvement of appellant in the offence in question. 15 The deceased was wife of the appellant and her dead body was found inside her room. PW-1, Smt. Ram Bai, who is the mother of deceased, have stated in her evidence that the appellant performed Churi marriage with her daughter and after about 2 months her daughter informed her through telephone that appellant suspects her fidelity. She states that six month back, the appellant made a telephonic call to her and informed that Teejmat Bai is admitted in the hospital and then she was being informed that her daughter is dead. In the next morning 7 when she went to the house of appellant, she saw dead body of her daughter and ligature mark was visible on her neck. The appellant disclosed that deceased has committed suicide. She further states that when she reached to the house of deceased, the appellant was saying that he brought medicine from the doctor. 16 PW-2, Ashok Kumar, the brother in law of the appellant, have stated in his evidence that when he came to know about the incident and came to house of appellant and enquired from the appellant about the incident, then he disclosed that he had taken the deceased towards field and in the evening some altercation took place with her and he had gone to brought some medicine for but when he returned back, he came to know that his wife has committed suicide by hanging. He got her body down on the ground, however she was died. In cross examination, he admits that he himself has not seen any incident between them and it is the appellant who informed him about quarrel between them. 17 PW-3, Ratti Lal, is the village Kotwar, who have stated in his evidence that when he received information about the incident, he had gone to the house of appellant and saw that deceased was in hanging condition and the appellant got her down on the ground. He took the appellant to police station for lodging report where appellant gave merg intimation. The appellant informed to police that he had gone to purchase medicine for her. This witness was declared hostile and not supported the case of prosecution. 18 PW-4, Dhan Bai Khunte, is the Aunt of appellant. She has stated that on 28.03.2018 the sister of appellant informed her about the incident 8 and they had also gone to the place and saw the deceased in hanging condition. When the appellant came to his house, in order to save her he got the body down then they came to know that she was died. In cross examination, she admits that on the issue of residing at her parent’s house, frequent quarrel took place between them and when the appellant refused to go there, she committed suicide by hanging. 19 PW-5, the sister in law of the appellant, who have stated that on the date of incident Sunita informed her about the incident and she too have seen the deceased in lying condition. She also admits dispute between appellant & deceased on the issue of residing at her parent’s house. 20 PW-6, Sunita, is also the witness to same fact as PW-5 have stated that deceased died due to hanging. 21 PW-7, Kirtan, turned hostile and have not supported the case of prosecution. 22 PW-8, Soni Kumari, is the first wife of the appellant. She have stated that the appellant used to beat and suspect her fidelity. When behavior of appellant was not recovered, she returned back to her parents house and thereafter the appellant performed second marriage by Churi custom. She subsequently came to know that appellant has committed murder of his second wife. From the evidence of this witness, the nature and conduct of the appellant reflects that he used to suspect the fidelity of not only his first wife, but also his second wife i.e. deceased Teejmat Bai. 23 PW-9, Mohanmati, have stated in her evidence that when they had gone to the place of incident, they saw the dead body having injury on 9 her neck and the appellant and his family members disclosed before the police that deceased died due to consuming some medicine and thereafter she fell down on the ground and died. In cross examination, she admits that deceased asked the appellant to reside with her parent’s house, to which the appellant denied. She voluntarily states that mother of deceased Ram Bai asked them to reside in her house but deceased never told him to reside there. 24 PW-10, Smt. Parvati, is sister in law of the deceased. She has stated in her evidence that on the date of incident the appellant made a telephonic call to mother of deceased and he informed that Teejmat Bai fell down on the ground, thereafter call was disconnected. After a short while, when the appellant again made a call, then she had a talk with elder mother of the appellant then she disclosed that Teejmat Bai has died. When they went there, they seen injuries on the neck of deceased. Nail marks were also present on neck. In her cross examination, nothing is there to disbelieve that they have not seen the injuries on the neck of deceased. 25 PW-11, Laxmi Kumar Mahilange, is the nephew of deceased. He has stated in his evidence that a day before the date of incident he along with his wife Parvati had gone to the house of the deceased and stayed in the night. On the date of incident at about 8 AM they requested the appellant to take the deceased with them, but deceased herself refused on account of having some work and thereafter they left the place and went back to their village. At about 7 PM the appellant informed that Teejmat Bai fell down due to giddiness and he is going to purchase medicine for her. After sometime, he again made a telephone 10 call and informed that she is died. He again made a call and informed that she has committed suicide by hanging. In the next morning when they came to the house of deceased, they saw her dead body and injuries on her neck. The police has recorded his memorandum statement in which he disclosed that due to suspicious conduct of his wife, he strangulated and committed her murder. When the police called the doctor and made enquiry from him, the doctor disclosed that he has not come to purchase medicine. In cross examination, he remain firm in saying that on the date of incident the appellant made repeated telephonic call changing his stand. He firstly said that deceased fell down on account of giddiness and he was going to purchase medicine for her, secondly he told that deceased died and subsequently he again made a call and told that deceased had committed suicide by hanging. 26 PW-12, Sankirtan Dehri is the Naib Tehsildar who conducted and prepared inquest Ex.P/1. 27 PW-14, G.P. Banjare and PW-15, Dharmanand Shukla are the investigating officer who proved part of their investigation conducted by them. 28 From the evidence of PW-11, Laxmi Kumar Mahilange, it has been proved that on the date of incident the appellant made telephonic call to him and informed that deceased fell down on the ground due to giddiness and he is going to purchase medicine for her which proves that at the time of incident the appellant was there in his house. Further, immediately after the incident the appellant came back to his house as stated by other witnesses PW-2,3,4,5,6,7 and 8 who are the 11 family members of appellant. The appellant has not disclosed as to where he was present or where he had gone to purchase medicine. Even he has not examined the doctor from whom he allegedly purchased the medicine. PW-11 has specifically stated that when police enquired from the doctor, he denied that appellant came to him for medicine. 29 In the case of Nagendra Sah Vs. The State of Bihar (2021) 10 SCC 725 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.” 30 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.” 12 31 Close scrutiny of evidence makes its clear that the appellant was very well present in his house just before the incident as he made telephonic call to PW-11, Laxmi Kumar Mahilange, and informed him that his wife fell down due to giddiness and he was going to purchase medicine. Subsequently, he made another call that she died. He made third call in its continuation after a short while that deceased Teejmat Bai has committed suicide by hanging. 32 Thus, the prosecution has been able to establish a prima facie case of homicidal death of the deceased inside her house under suspicious circumstances strongly suggesting that she did not hang herself . Once these conditions are fulfilled, the onus shifts to the Appellant under Section 106 of the Indian Evidence Act to establish the circumstances under which his wife died an unnatural death in his house. His defence that she committed suicide by hanging has been disbelieved by us. In State of Rajasthan Vs. Kashi Ram 2006 (12) SCC 254 it was observed by Hon. Supreme Court as under: “23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of section 106 of the evidence act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by section 106 of the evidence act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in naina mohd., Re” 13 33 From the evidence of other witnesses PW-1, Ram Bai, PW-2, Ashok Kumar, PW-3, Ratti Lal, PW-4, Dhan Bai Khunte, PW-5 Goldi Khunte, PW-6, Sunita Khunte, PW-7, Kirtan and PW-9 Smt. Mohanmati, it appears that appellant was very well present in his house though the witnesses have stated that they came subsequently and found the dead body of the deceased, the appellant could not give any explanation as to where he was at the relevant point of time. Even otherwise, he could not prove his plea of alibi that he was not present in the house and had gone to doctor to purchase mediation. PW-11 has further stated that when the police has inquired from the doctor, he denied that appellant came to him to purchase medicine. Even the appellant has not produced him as his defence witness that he had come to him to purchase medicine. All these circumstances pointing towards the guilt of the appellant that he committed murder of deceased by strangulation and tried to give it colour of suicide and hanged the dead body after strangulation. The doctor who conducted the postmortem of the dead body of the deceased have also found antemortem ligature mark and opined that death was due to strangulation. Further, the appellant in his 313 CrPC statement has disclosed that the deceased has committed suicide by hanging herself, but her death was not found to be suicidal and as per postmortem report she died due to homicidal death. 34 No evidence has been furnished with regard to any medical prescription, purchase receipt much less the name of any medicine purchased. A false unsubstantiated defence is an additional incriminating factor against the appellant. In Trimukh Maroti Kirkan v. State of Maharashtra, 2006 (10) SCC 681, it was observed as follows :- 14 “22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of H.P. it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with “khukhri” and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 CrPC. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of T.N. v. Rajendran the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.” 35 Considering the entire facts and circumstances of the case as well as law laid down by the Hon. Supreme Court in the filed of presumption under Section 106 of the Evidence Act, the learned trial court has held the appellant guilty for commission of murder of his wife in which we do not find any illegality or perversity. 15 36 In the result, the appeal fails and his hereby dismissed. The appellant shall undergo the entire sentence as awarded by the trial court. 37 Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 38 The records of the case along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice inder