1 2025:CGHC:18287-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on : 24-03-2025 Judgment delivered on : 23-04-2025 CRA No. 1587 of 2019 Suna Ram Uikey S/o Late Mansai Uikey Aged About 23 Years R/o Village Doddekadar, Shikaripara, Police Station Badgaon, District North Bastar Kanker, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Badgaon, District North Bastar Kanker, Chhattisgarh. ... Respondent For Appellant : Ms. Savita Tiwari, Advocate. For Respondent : Ms. M. Asha, Panel Lawyer. Hon'ble Smt. Justice Rajani Dubey, & Hon'ble Shri Justice Sachin Singh Rajput, JJ CAV Judgment Per Rajani Dubey, J The appellant in this appeal is challenging the legality and validity of the judgment of conviction and order of sentence dated 2 8.10.2018 passed by the Additional Sessions Judge, Bhanupratappur, Distt. North Bastar Kanker in ST No.74/2016 whereby the appellant stands convicted under Section 302 of IPC and sentenced to undergo imprisonment for life, pay a fine of Rs.500/- and in default thereof to suffer additional RI for six months. 02. Case of the prosecution, in brief, is that complainant Jalluram Uike lodged a report the effect that on 31.8.2016 he had gone to Pankhajur in connection with his personal work and at around 4 pm he was informed by his family members over phone that Somari is dead in the house of accused Sunaram. Immediately thereafter he reached the house of the accused where 15-20 persons had gathered and accused Sunaram was also there. On being asked, Sunaram disclosed that as he did not want to marry her, he throttled her to death while she was asleep in the field at around 11 am. During this disclosure many villagers were present. On this report, FIR (Ex.P/13) under Section 302 of IPC was registered against the accused. 03. During the course of investigation, merg intimation Ex.P/14 was registered, inquest over the dead body was performed vide Ex.P/3; spot map and Patwari map were prepared vide Ex.P/17 and P/09 respectively; and dead body was sent for postmortem examination which was conducted by PW-4 Dr. Piyush Kumar Singh vide Ex.P/07 wherein he opined that cause of death is respiratory failure due to asphyxia caused by throttling and nature of death is homicidal. 3 Confessional statement of the accused was recorded vide Ex.P/1. As per seizure memos Ex.P/4 & P/8 certain articles were seized and sent to FSL for examination. After completing usual investigation, charge sheet under Section 302 of IPC was filed against the accused followed by framing of charge accordingly by learned trial Court which was abjured by him and he prayed for trial. 04. In order to substantiate its case the prosecution examined 15 witnesses. Statement of the accused was recorded under Section 313 of CrPC wherein he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. However, no witness was examined by him in his defence. 05. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the appellant as mentioned above. Hence this appeal. 06. Learned counsel for the appellants submits that the impugned judgment is bad in law, perverse, erroneous and liable to be set aside. Learned trial Court passed the impugned judgment merely on conjectures and surmises on the ground that the deceased was having love affair with the appellant. Though some witnesses have been examined by the prosecution but they are not eyewitnesses to the incident. The evidence adduced by the prosecution is not of such 4 quality which could made basis of conviction of the appellant. The prosecution has failed to prove its case beyond reasonable doubt. Therefore, the impugned judgment is liable to be set aside and the appellant deserves to be acquitted of the charge u/s 302 of IPC by giving him benefit of doubt. Reliance has been placed on the decisions in the matter of Devsai Cherva Vs. State of CG, ILR 2023 Chhattisgarh 1027; Shatrughan Singh Sinha Vs. State of CG, ILR 2023 Chhattisgarh 1051 and the judgment of this Court dated 17.8.2022 passed in the matter of Anant Dutta Vs. State of CG in CRA No. 457/2014. 07. On the other hand, learned counsel for the State supporting the impugned judgment submits that learned trial court minutely appreciated oral and documentary evidence on record and rightly convicted and sentenced the appellant. As such, this appeal being without any substance is liable to be dismissed. 08. Heard learned counsel for the parties and perused the material available on record. 09. First of all we are to see whether death of Somari Dhruv was homicidal in nature? 10. PW-4 Dr. Piyush Kumar Singh conducted postmortem on the body of the deceased on 1.9.2016 and found following injuries: 5 External examination: Body of a young female of around 20 yrs of age. Body is cold and rigor mortis is present. Legs and upper extremities extended, mouth is closed, eyes closed. There are two large nail marks on neck at front. Bruises likely to be of thumb. There are no other signs of traumatic injuries seen. Fist is empty and its not tightly close. No signs of bleeding or or bruise near sexual organs. Death is likely to be about 6- 12 hours old. Internal examination: On dissection there is extravasation underneath the bruise on neck . Hyoid bone is fractured. Both lungs are congested. Both chambers of heart are filled with dark coloured clots. In his opinion, the cause of death is respiratory failure due to asphyxia caused by throttling and the nature of death is homicidal. He proved his report Ex.P/7. In cross-examination the doctor denied the suggestion that if one is throttled, there would be lacerated wound on the neck. He denied the suggestion that tongue is protruded in such cases. Nothing has been brought on record in his cross-examination which could suggest that death of the deceased was other than homicidal. Thus, looking to the postmortem report, the evidence of autopsy surgeon as also the inquest panchanama, it is clear that the finding of learned trial Court that the death of deceased was homicidal is a finding of fact based on 6 proper appreciation of evidence on record. As such, it stands proved beyond reasonable doubt that the death was homicidal in nature. 11. Now we are to examine the evidence to ascertain whether it is the appellant who is author of the crime in question. 12. PW-1 Kejuram, brother of the deceased, states that about a year ago the appellant had eloped with the deceased for performing marriage with her regarding which a meeting was convened in Village- Dodde Kadar where the appellant told that he would keep his sister/deceased and both of them agreed for marriage. However, after a month of their living together, in the month of August the villagers of Dodde Kadar came and informed him that his sister Somari has died whereupon he along with his uncle Chaman Singh, younger brother Lal Sai, mother Kiliyari Bai went to the house of the accused and saw Somari lying on the cot in the verandah with injury on her neck. He states that when Jalluram Uike enquired from the accused about her death, he disclosed that he throttled her to death in the agriculture field as he did not want to marry her. The appellant’s confession panchanama is Ex.P/1 which bears his signature from A to A part. In cross-examination he admits in para 18 that the said confession panchanama of Ex.P/1 was prepared by the Station House Officer which was signed by the villagers along with him. 13. PW-2 Chaman Singh Dhruv is uncle of the deceased and PW-3 Lal Sai is brother of the deceased. They also state that after coming to 7 know about critical condition of Somari, they along with Kejuram, Smt. Kiliyari and Sanki Bai went to the house of accused where Somari was lying on the cot in the verandah and her body was covered with a cloth. They noticed red color mark on her neck. They state that when one of the family members of the accused namely Jalluram Uike enquired from the accused about her death, the accused disclosed that he committed her murder by throttling in the field. They admit their signature on the confession panchanama Ex.P/1 from B to B and C to C part respectively. However, in cross-examination they admit that the said confession panchanama of Ex.P/1 was written by the police in the village and they signed the same. 14. PW-13 Maniram also states that Sunaram eloped with Somari and took her to his house at Village-Panchagi for marriage and in the village meeting they agreed for marriage. He too admits that confession panchanama of Ex.P/1 was written by the police and that the appellant confessed his guilt before the police. 15. PW-9 Jalluram states that he gave merg intimation Ex.P/14 and admitted his signature thereon from A to A part. He also admits his signature on confession panchanama Ex.P/1 from D to D part. In cross-examination he admits that confession panchanama Ex.P/1 was written by the police. 8 16. PW-10 Fagni Bai, aunty of the appellant, states that on the date of incident at around 8 am her sister-in-law (Jethani) Smt. Dashri Bai and son of her brother-in-law (Jeth) Sunaram (appellant) and Somari Dhruv (deceased) left for the agriculture field. She states that Somari Bai died at around 1 o’clock and Sunaram, one villager and Dashri Bai brought Somari Dhruv to the house on shoulder. She states that when she asked Sunaram as to how Somari died, he replied that she died due to fit. 17. PW-11 Pawan Verma, Inspector, states that Jalluram informed on 31.8.2016 that the appellant did not want to marry Somari Dhruv and therefore, he committed her murder by throttling. He lodged merg intimation Ex.P/14 and FIR (Ex.P/13). 18. PW-14 Sankibai stated that on the date of incident she went to her agriculture field. At that time, the accused/appellant shouted “uncle, uncle”, on which she told him that his uncle has not come today. Then the accused asked her to bring him there. At the same time, the accused informed her that Somari has suffered fit and therefore, she went to her house for calling her husband, however, her husband refused to go there. She states that while returning from the field she informed Dhaniram on the way about fit of Somari. In para 3 she states that after some time Sunaram brought dead body of Somari to the house. In cross-examination she admits that she has no knowledge as to how Somari suffered fit. 9 19. It is thus clear from the statements of all the witnesses that the accused/appellant made alleged confession before the police and the confession panchanama (Ex.P/1) was prepared by the police. Being so, in view of provisions of Section 25 of the Indian Evidence Act, such confessional statement before the police has no evidentiary value and it cannot be taken against the accused. PW-1 Kejuram, PW-2 Chaman Singh and PW-3 Lal Sai have stated in their cross-examination that the accused/appellant had love affair with the deceased and after village pancahayat he brought her to his house and they were living together. PW-10 Fagni Bai saw the deceased and the accused together while they were leaving for the field. PW-14 Sani Bai was present at the field when the accused/appellant and the deceased were there and the accused sent her for calling her husband saying that the deceased has suffered fit and thereafter, as stated by the witnesses, the appellant brought dead body of Somari back to his house on shoulder. PW-10 Fagni Bai and PW-14 Sanki Bai remained firm in their statement that the accused/appellant was with the deceased soon before her death. Even Sanki Bai was present at the time of incident in the field and accused sent her to the house for calling her husband saying that Somari has suffered fit. After some time, her dead body was brought back to the house by the appellant. As per postmortem report, cause of death is respiratory failure due to asphyxia caused by throttling and nature of death is homicidal. The autopsy surgeon also noticed 10 extravasation underneath the bruise on neck and fracture of hyoid bone. 20. In his statement under Section 313 of CrPC, the accused simply denied all the allegations. In reply to question No.44 he stated that it is true that he had informed his aunty Fagni Bai that the deceased was suffering from epilepsy. In reply to question No. 73 he admitted that on the date of incident at around 5 pm he had asked PW-14 Sanki Bai, who was working in the field, to call the uncle as Somari suffered fit. 21. The Hon’ble Supreme Court in the matter of Tulshiram Sahadu Suryawanshi and Anr. v. State of Maharashtra, (2012) 10 SCC 373, observed as under: “23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the 11 prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. 22. Recently, the Hon’ble Supreme Court in the case of Anees v. The State Govt. of NCT, 2024 INSC 368, held in the following terms: “40. Section 106 of the Evidence Act cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden on the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused.” 23. Admittedly, there is no direct evidence against the accused/appellant proving his involvement in the crime in question and 12 the whole case rests upon circumstantial evidence. It stands proved beyond reasonable doubt from the evidence as discussed above that there was love affair between the accused and the deceased and prior to the incident they were living together. PW-14 Sanki Bai saw the accused and the deceased together in the field on the date of incident and that at the instance of accused she went to the house for calling her husband and after some time, the accused brought the dead body of Somari to the house. This fact has been duly proved by the prosecution. Medical evidence proves that she died on account of respiratory failure due to asphyxia caused by throttling. Keeping in mind the aforesaid principles of law, the accused in this case was required to offer explanation as to what happened to the deceased in the field and under what circumstances she sustained injury over her neck which led to her death. All these facts were within special knowledge of the accused/appellant, however, no such explanation was offered by the appellant and rather he made false excuse that she suffered epileptic fit. Thus, this conduct of the accused also points towards his guilt and serves as an additional link in the chain of circumstantial evidence. 24. Having regard to the facts and circumstances of the case, the deceased being last seen alive in the company of the appellant; the failure of the appellant to explain as to how the deceased was throttled to death; his conduct during the incident and subsequent thereto; the 13 unrebutted oral and medical evidence on record; this Court is of the opinion that the finding of guilt recorded by the learned trial Court is based on proper appreciation of overall evidence on record. The prosecution has proved its case based on circumstantial evidence beyond reasonable doubt against the appellant. The judgments relied upon by learned counsel for the appellant being distinguishable on facts are of no help to him. As such, there is no scope for any interference by this Court in this appeal. 25. In the result, the appeal being bereft of any merits is liable to be and is, accordingly, dismissed. The appellant is reported to be in jail, therefore, no order regarding his arrest, surrender etc. is required to be passed. Sd/ Sd/ (Rajani Dubey) (Sachin Singh Rajput) Judge Judge Khan MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN Date: 2025.04.24 10:21:16 +0530