1 2025:CGHC:23904 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2141 of 2023 Lalman Sarthi S/o Banarsi Sarthi Aged About 50 Years Caste- Harijan, R/o Umjhar Rajwarpara, P.S. Charcha, District Korea, C.G. ... Appellant versus State of Chhattisgarh Through The Police Station - Charcha, District- Korea, C.G. ... Respondent For Appellant : Ms. Chetna Sharma, Advocate. For Respondent/State : Ms. Smriti Shrivastava, Panel Lawyer. Hon'ble Mr. Ramesh Sinha, Chief Justice Order on Board 13.06.2025 1. Though, today the present appeal is listed for hearing on I.A. No. 02 of 2025, which is an application for condonation of non-appearance before the Registry, however with the consent of learned counsel for the parties and considering the period of detention of the appellant, the appeal is heard finally. 2. Accordingly, I.A. No. 02 of 2025 stands disposed of. 3. This appeal is directed against the judgment of conviction and order of sentence dated 26.09.2023 passed by the learned Additional ABHISHEK SHRIVAS Digitally signed by ABHISHEK SHRIVAS Date: 2025.06.18 18:44:24 +0530 2 Sessions Judge, Baikunthpur, District Korea (C.G.) in Sessions Trial No. 93/2022 whereby the trial Court after holding the appellant guilty for the offence punishable under Section 304 Part-I of the Indian Penal Code sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 50/-, in default of payment of fine to further undergo imprisonment for 7 days. 4. The judgment of conviction and order of sentence is challenged on the ground that the prosecution has not proved the charge against the appellant and has failed to prove the fact that the accused has assaulted the deceased and caused dangerous injury resulting into death of the deceased. 5. The prosecution’s case, in brief, is that the deceased, Sunita Sarthi, was the wife of the accused. She used to consume alcohol and was also suffering from a menstrual illness. On 15.09.2022, the accused and his wife had returned from the forest after collecting khukhdi mushrooms, which the deceased sold outside and came back intoxicated between 4:00 to 5:00 PM. She fell near the door. The accused took her inside, and upon inquiry, she informed that she had sold the mushrooms for Rs.900/-. On 16.09.2022, she went out in the morning and returned after consuming alcohol worth Rs. 700/-. She insisted that the accused also go to drink alcohol. When the accused refused, she started verbally abusing him under the influence of alcohol, alleging that he had illicit relations with her mother, daughter, and sister, and used obscene language. Angered by this, the accused struck her with a stick. After some time, she told him to go to Cher and bring money to take her for treatment. The accused locked the house 3 and went to Cher to get money. He returned with Rs. 300/- and went to his sister’s house in the village of Sagarpur. When he returned home, he found his wife lying dead. Shortly after, the accused’s sister, Raniya, arrived and brought some villagers. The accused then informed the Characha Police Station about the incident. Based on the information, Merg (Unnatural Death) No. 36/2022 was registered and investigated. Subsequently, FIR No. 250/2022 under Section 302 of the Indian Penal Code (IPC) was registered against the accused. The inquest over the body of the deceased was conducted in the presence of witnesses after serving notice (Exhibit P-1), and the inquest diagram (Exhibit P-2) was prepared. 6. The deceased’s body was sent for post-mortem to the District Hospital, Baikunthpur, where Dr. Rakesh (PW-10) conducted the autopsy and issued a report (Exhibit P-10A), which stated that the cause of death was homicidal in nature. Statements of the witnesses were recorded during the investigation. Based on the memorandum of the accused (Exhibit P-6), the stick used in the incident was seized. The accused was arrested, and the arrest memo (Exhibit P-14) was prepared. After completing the investigation, a charge-sheet was filed against the accused under Sections 302 and 201 of IPC before the Court of Judicial Magistrate First Class, Baikunthpur. On 24.11.2022, the case was committed to the Court of the learned Sessions Judge, Korea, Baikunthpur, from where it was transferred to this Court. 7. Charges were framed against the accused under Sections 302 and 201 of the Indian Penal Code, 1860. The charges were read over and explained to the accused, who denied the charges and claimed trial. 4 8. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as 10 witnesses and exhibited the documents (Exs. P-1 to P-17A). The statement of the appellant under Section 313 of CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in para 3 of the judgment. Hence, this appeal. 9. Learned counsel for appellant would submit that she is not pressing this appeal as far as it relates to conviction part of impugned judgment and is confining his argument to the quantum of sentence only. She submits that the judgment dated 26.09.2023 delivered by the learned Trial Court is contrary to the facts and evidence available on the record, hence liable to be set aside. There is nothing material on record to show that appellant is at all involved in the crime and there is nothing on record to prove the case against the appellant beyond reasonable doubt. She also submits that there is no eye witness in the case, and father of the accused was also residing in the house prosecution has failed to examine him before the trial court. There are two routes to enter into the house of accused and deceased and therefore it is likelihood that someone else would have come to the house and committed the crime. She also submits that the trial Court has failed to consider that witnesses had been examined by prosecution and close scrutiny to the Court evidence and there 161 statements, they do not inspire confidence and conviction is illegal and findings are baseless, compliance of provision of law was also not 5 done by the prosecution, hence whole case collapse and the appellant is entitled for acquittal. She further submits that the ingredients of section is also not made out in spite of that a conviction order was passed which is totally illegal. Appellant is innocent and unnecessary involve in the criminal case and prosecution of criminal case had spoil the life of the appellant. She submits that the learned trial Court below without considering the fact and aspect of the case and without application of mind, without examining the evidence properly, awarded the sentence to the appellant only on the basis of evidences, which had no foundation. There was no reason or motive to do such type of crime and further nothing in the evidence of independent witness came that appellant is at all involved in the crime. 10. She also submits that the learned trial Court has sentenced the appellant for ten years rigorous imprisonment and as the appellant has already suffered jail sentence of 02 years 05 months and 18 days has already deposited the fine amount of Rs.50/- imposed by the trial Court, therefore, the sentence already undergone by him may be suffice to meet the ends of justice. Hence, it is prayed that the sentence awarded to the appellant may be reduced to the period already undergone by him. 11. On the other hand, learned counsel appearing for the respondent/State, submits that the trial Court has rightly convicted and sentenced the applicant, in which no interference is called for. 12. In order to appreciate the contentions of the parties, I have examined the evidence adduced on behalf of the prosecution. The injury found over the body of the deceased and cause of death is not substantially 6 disputed by the appellant, otherwise established by the evidence of Dr. Rakesh (PW-10). 13. Dr. Rakesh (Assistant Surgeon-10) conducted the post-mortem examination of the deceased, Sunita Sarthi, on 18/09/2022 at the District Hospital, Baikunthpur. The corneas of both eyes were dried. Rigor mortis had passed. The body had begun to emit the foul smell of decomposition. Maggot eggs were found on the body, particularly on the scalp and in the perineal region. Signs of putrefaction were present. The left and right sides of the abdomen had turned green. The abdomen was slightly bloated due to gas. The chest had also turned green. The entire body showed signs of skin peeling, including the face. Postmortem lividity had fully developed. A dark bruise was found on the outer part of the right shoulder, which appeared to be a pressure mark. Signs of struggle were observed. 14. Dr. Rakesh (PW-10) conducted post-mortem over the body of deceased and found following injuries:- I. A contusion measuring 15 x 5 cm on the forehead, II. A contusion and swelling measuring 5 x 3 cm above the left eyebrow, III. Multiple contusions and swellings on the face measuring 5 x 4 cm, 4 x 4 cm, and 3 x 3 cm, IV. Multiple abrasions on the front and back of both thighs measuring 2 x 5 cm, 5 x 5 cm, 6 x 2 cm, 3 x 2 cm, 8 x 8 cm, 3 x 3 cm, 3 x 2 cm, 3 x 3 cm, and 8 x 8 cm, V. Multiple contusions on the legs, VI. Numerous contusions on the upper and lower parts of the back, VII. A contusion measuring 10 x 7 cm on the hip, VIII. Multiple contusions on both arms, 7 IX. A lacerated wound measuring 1 x 1 cm on the little finger of the right hand, X. An abrasion measuring 5 x 3 cm on the left side of the abdomen, XI. Contusions measuring 3 x 2 cm and 4 x 1.5 cm on the upper chest. The contusions were black and brown in color. The estimated age of the injuries was within four days. The injuries found on the thighs and scalp were of a very serious nature. 15. The question for consideration is whether the appellant is the author of the crime, which the trial Court has answered in affirmative relying upon the circumstantial evidence available on record. The trial Court has convicted the appellant with the aid of Section 106 of the Evidence Act holding that it is house murder, which the appellant was required to offer explanation in his statement under Section 313 of the CrPC, which he has failed to offer and consequently, finding other circumstance established, proceeded to convict him for offence under Sections 302 and 201 of the IPC. 16. 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.” 17. The law regarding under Section 106 of the Indian Evidence Act, 1872 is well settled. The unnatural death of Kailashkunwar took place in the house of the appellant. 18. As per the requirement of Section 106 of the Indian Evidence Act, the accused was required to give plausible and convincing explanation 8 about the circumstances, in which, the deceased was found dead in their house. Where an offence like murder is committed inside the house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases. The burden would be of a comparatively lighter character. 19. In view of Section 106 of the Indian Evidence Act, 1872, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how crime was committed. The inmates of the house cannot keep away by simply keeping quite and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer any explanation. 20. In the matter of Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681 the Supreme Court whilst applying provisions of Section 106 of the Indian Evidence Act, observed in para 14 reads as under: “14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead 9 evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: (b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him." 21. On the interpretation of Section 106 of the Indian Evidence Act, 1872 in the matter of Shambhu Nath Mehra v. State of Ajmer reported in AIR 1956 SC 404 in paragraph 9 it was observed by the Supreme Court thus: "9. This 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 facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently 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." 22. In the matter of State of West Bengal v. Mir Mohammad Omar and others reported in (2000) 8 SCC 382, the Supreme Court Court has observed in paras 31 to 33 as under: 10 “31. The prestine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty. 32. In this case, when the prosecution succeeded in establishing the afore narrated circumstances, the Court has to presume the existence of certain facts. Presumption is a course recognized by the law for the court to rely on in conditions such as this. 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. 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 reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.” 23. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval in the matter of Nagendra Sah v. State of Bihar reported in (2021) 10 SCC 725 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 11 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 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.” 24. Thus, from the statement of the medical witness Dr. Rakesh (PW-10) and the report provided by him (Ex.-10A), it is evident that the deceased had sustained multiple injuries on various parts of her body. The death of the deceased occurred due to internal bleeding caused by a head injury, which was of a homicidal nature. It is therefore established in the case that the death of the deceased, Sunita Sarthi, was of a criminal and homicidal nature. 25. The trial Court after appreciating oral and documentary evidence available on record, particularly relying upon the statement of Dr.Rakesh (PW-10), who conducted postmortem, has come to the conclusion that cause of death is cardio pulmonary arrest due to intracranial bleed due to head injury and nature of death was homicidal in nature. After hearing learned counsel for the parties and after considering the submissions, I am of the considered opinion that 12 the finding recorded by the trial Court that death of deceased Sunita Sarthi was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. I hereby affirm that finding. 26. In the present case, the deceased was found dead in her house and at that time, only the appellant and the deceased were present in the house and as per the provision of Section 106 of the Evidence Act, the burden to prove that the appellant was not present in the 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 of the CrPC. 27. Considering the statement of Dr. 27. Considering the statement of Dr. Rakesh (PW-10) and his postmortem report (Ex.P-10A), 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 in the house of the appellant, which he has admittedly not explained in his statement under Section 313 of the CrPC and the material collected by the prosecution, I am 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. As such, his conviction under Section 304 Part-I of the IPC is hereby affirmed. 13 28. So far as the sentence imposed upon the appellant is concerned, considering the fact that at present, appellant is aged about 50 years and incident took place in a heat of passion and on sudden provocation without any predetermination and nature of injuries, this Court finds it appropriate to reduce the sentence from RI for 10 years to RI for 7 years under Section 304 Part-I of the IPC. 29. Consequently, the criminal appel is partly allowed. Conviction of the appellant under Section 304 Part-I of the IPC is hereby maintained, however, his sentence is reduced from RI for 10 years to RI for 7 years. 30. The appellant was granted bail by this Court vide order dated 07.03.2025 and was directed to appear before the Registry on 25.04.2025 and as such on the next date of hearing i.e. 10.06.2025 on an application being filed by the appellant seeking condonation of his non-appearance before the Registry on 25.04.2025, the said application was allowed and the appellant was directed to appear on 12.06.2025. In compliance of the said order the appellant has caused his appearance. 31. As the appellant is on bail, he is directed to surrender before the trial Court concerned within a period of two weeks from today, in order to serve the remaining part of the sentence as has been modified by this Court, failing which the trial Court shall take him into custody in accordance with law and send him to jail for serving remaining part of sentence. 14 32. The Registry is directed to transmit the certified copy of this judgment along with the record to the trial Court concerned for necessary information and compliance. 33. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his 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 the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- (Ramesh Sinha) CHIEF JUSTICE Abhishek