1 2025:CGHC:3827-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1882 of 2019 Vinay Khes S/o Silberius Khes Aged About 26 Years R/o Goriya, Police Station Narayanpur, District Jashpur, Chhattisgarh., District : Jashpur, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station Narayanpur, District Jashpur, Chhattisgarh., District : Jashpur, Chhattisgarh ... Respondent For Appellant : Mr.V.R.Tiwari, Senior Advocate assisted by Mr.Atul Kumar Kesharwani, Advocate For Respondent : Mr.Sakib Ahmed, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 22/01/2025 1. This criminal appeal preferred under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.01.25 14:27:25 +0530 2 sentence dated 28.10.2014 passed by learned Additional Sessions Judge, Kunkuri, District Jashpur in Sessions Case No.85/2013 by which the appellant has been convicted for offence under Section 302 (three times) of the IPC and sentenced to undergo imprisonment for life on each count. 2. Case of the prosecution, in brief, is that accused Vinay Khes had a black spot on his face, for which he got medical treatment but when it was not cured, he was getting treatment for a Vaiya. On this, the accused father deceased Silberius and his mother (step mother) deceased Angela Khes suspected him of going to learn black magic (jadu tona). On the same issue, the accused / appellant on 29.07.2013 at about 2.30 A.M. had a quarrel with his father Silberius Khes, mother Angela Khes and his wife Princila Khes and killed all the three by assaulting them on the head with axe. Regarding the above incident, on the report of the accused himself, Narayanpur Police Station registered a case against him under Sections 302, 302 and 302 of the IPC vide Ex.P-13. Investigating officer proceeded for scene of occurrence. Spot map was prepared by patwari vide Ex.P-1. Dead bodies were recovered vide recovery panchnama Ex.P-5. Memorandum statement of the appellant was recorded vide Ex.P-6 and on the basis of his memorandum statement, axe stained with blood was seized at the instance of the appellant vide Ex.P-7. Barmuda (chadda) and t-shirt were seized from the appellant vide Ex.P-8. One key was seized from the appellant vide Ex.P-9. Bloodstained 3 and plain soil were recovered from the spot vide Ex.P-10. Inquest was prepared over the body of deceased Silberius Khes vide Ex.P-11. Investigating officer also prepared the spot map vide Ex.P-12. Merg intimation was recorded vide Exs.P-14, P-15 and P-15. The investigating officer also prepared the spot map vide Ex.P-18. Inquest over the body of deceased Anjela Khes was prepared vide Ex.P-19. Inquest over the body of deceased Smt.Princila Khes was prepared vide Ex.P-20. The appellant was arrested on 29.07.2013 vide arrest memo Ex.P-24. Dead body of deceased Silberius Khes was sent for postmortem to Community Health Center, Kunkuri where Dr.Sangeeta Tirki (PW-10) conducted postmortem over the body of deceased Silberius Khes vide Ex.P-31 and found following injuries:- “1. Lacerated wound cut over right parietal region size about 8 cm x 1 ½ cm x bone deep below this fracture of parietal bone. 2. Lacerated wound over below frontal region size about right side 6 cm x 1 ½ cm x bone deep (brain exposed) left side 5 cm x .5 cm x bone deep (brain exposed) below this fracture of below frontal bone. 3. Lacerated wound over vertex size about 6 cm x 1 ½ cm x bone deep below this fracture of parietal bone. Haemotoma cut over brain.” The doctor has opined that cause of death is haemorrhagic shock due to fracture of skull bone (multiple fracture). Nature of death is homicidal. Postmortem of body of deceased Smt.Anjela Khes was conducted vide Ex.P-32 and found following injuries:- 4 “1. 2 lacerated wound cut over left parietal region each size about (A) 6 ½ cm x 1 cm x bone deep (B) 5 cm x 1 cm x bone deep below this fracture of parietal bone and below this haematoma cut over brain. 2. 3 lacerated wound cut over vertex size about (A) 5 cm x 1 cm x bone deep (B) 2.5 cm x 1 cm x bone deep (C) 2.5 cm x 1 cm x bone deep below this fracture of bone cut and below this fracture of haematoma cut over brain. 3. 2 lacerated wound cut over occipital region size about (A) 6 cm x 1 cm x bone deep (B) 5 cm x 1 cm x bone deep below this fracture of occipital bone and haematoma cut over brain.” The doctor has opined that cause of death is haemorrhagic shock due to fracture of skull bone (multiple fracture). Nature of death is homicidal. Postmortem of body of deceased Smt.Princila Khes was conducted vide Ex.P-33 and found following injuries:- “1. 3 lacerated wound over right fronto parietal region each size about (A) 5 cm x 2 cm x bone deep brain exposed (B) 4 cm x 2 cm x bone deep (C) 5 cm x 2 cm x bone deep. 2. 3 lacerated wound over left frontal region each size about (A) 4 cm x 2 cm x bone deep (B) 6 cm x 2.5 cm x bone deep (C) 3 ½ cm x 1 cm x bone deep below this fracture of right fronto parietal bone and right supra orbital bone and fracture of left frontal bone and left supra orbital bone. 3. 4 lacerated wound over left pariato temporal region (A) 4 cm x .5 cm x bone deep (B) 3 cm x .5 cm x bone deep (C) 6 cm x 2 cm x bone deep (D) 4 ½ x .5 cm x 5 bone deep below this fracture of parietal bone and haematoma cut over brain. 4. Lacerated wound over left temporal region 3 cm x 2 cm x bone deep. 5. Lacerated wound over right little and ring finger below this fracture of middle phalanger.” The doctor has opined that cause of death is haemorrhagic shock due to fracture of skull bone (multiple fracture). Nature of death is homicidal. Nighty and bra stained with blood of deceased Princilla Khes, nighty and bra stained with blood of deceased Angela Khes and sando stained with blood were seized vide Ex.P-26. 3. Seized articles were sent to FSL for examination and as per FSL report (Ex.P-35), blood was found on Articles A, C, D, E, F, G, H, I & J and human blood was found on Article C, D and E and blood group proved on weapon as well as clothes. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After usual investigation, the accused / appellant was charge-sheeted for offence under Section 302 of the IPC and charge-sheet was filed before the jurisdictional criminal Court and the case was committed to the Court of Additional Sessions Judge, Kunkuri for hearing and disposal in accordance with law. 5. The accused / appellant abjured the guilt and entered into witness. In order to bring home the offence, the prosecution examined as many as 12 witnesses and exhibited 35 documents. 6 The defence has examined none in his defence and no document has been exhibited. 6. The trial Court upon appreciation of oral and documentary evidence on record and considering that it is the appellant who has caused the murder of his wife, father and mother proceeded to convict and sentence him under Section 302 (three times) of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred. 7. Mr.V.R.Tiwari, learned Senior Advocate assisted by Mr.Atul Kumar Kesharwani, learned counsel for the appellant submits that the trial Court erred in convicting the appellant for the alleged offence, particularly when the material witnesses have not supported the case of the prosecution. The learned trial Court failed to appreciate that the prosecution has not established the intention of the accused/appellant to commit murder of three deceased. He further submits that the trial Court failed to appreciate that there is no eye witness in the present case, therefore, conviction of the appellant cannot be sustained merely on the basis of conjecture and surmises. He also submits that there are material contradictions and omissions in the statement/deposition of the prosecution witnesses, which has been overlooked by the trial Court. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside. 7 8. On the other hand, Mr.Sakib Ahmed, learned Panel Lawyer appearing for the respondent/State, supports the impugned judgment and submits that the statement of Smt.Vipin Ekka (PW- 2) who was present on the date of incident is wholly reliable and trustworthy. He further submits that the appellant has rightly been convicted by the trial Court and as such, the criminal appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and also went through the original records of the trial Court with utmost circumspection and carefully as well. 10. The first question for consideration would be, whether the trial Court was justified in holding that deaths of deceased Silberius Khes, Angela Khes and Princila Khes were homicidal in nature ? 11. The trial Court relying upon the statement of Dr.Sangita Tirkey (PW-10), who has conducted postmortem on the bodies of deceased Silberius Khes, Angela Khes and Princila Khes vide Exs.P-31 to P-33, has clearly come to the conclusion that deaths of deceased Silberius Khes, Angela Khes and Princila Khes were 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. 8 12. It is house murder and only the appellant and the deceased were present at the time of incident and the appellant was required to offer explanation in his statement under Section 313 of the CrPC that he has not caused any injuries to the deceased and someone has caused injuries to the deceased, which he has failed to offer and consequently, finding other circumstance established, proceeded to convict him for offence under Section 302 (three times) of the IPC. 13. 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.” 14. The law regarding under Section 106 of the Indian Evidence Act, 1872 is well settled. The unnatural death of Indrani Sahu took place in the house of the appellant. 15. As per the requirement of Section 106 of the Indian Evidence Act, the accused was required to give plausible and convincing explanation about the circumstances, in which, the deceased was found dead in his 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. 9 16. 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. 17. 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 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 10 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." 18. 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." 19. In the matter of State of West Bengal v. Mir Mohammad Omar and others reported in (2000) 8 SCC 382, the Supreme Court has observed in paras 31 to 33 as under: 11 “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.” 20. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval in the matter of Nagendra Sah 12 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 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.” 21. Smt.Vipin Ekka (PW-2) (daughter of Silberius & Angela Khes and sister of the appellant) has stated in para 2 of her evidence that the incident occurred on July 29, 2013. On that day, she had gone to her maternal home in Goria village. Her father, mother and sister-in-law were at home. The accused was also present. He had a dispute with his wife, Princila, who was dark-skinned, which led to tension between them. On the day of the incident, the accused left home and returned around 11 P.M. When he 13 returned, his wife, mother and father asked him where he had been, he did not respond. Her father asked him if he had gone to see a sorcerer, but he remained silent. Later that night, around 2:30 A.M., the accused woke up and killed her father, mother, and sister-in-law with a tangi (a type of axe). She was sleeping in a separate room and woke up to the commotion. When she asked him what had happened, he said he had killed them. She saw injuries on their heads and there was blood everywhere. Her parents were sleeping in the same room, while her sister-in-law was alone in her room. In para 3 of her evidence, she has stated that after committing the crime, accused Vinay Khes went to Narayanpur Police Station. The next day, the police came to investigate and found the three bodies at the scene. 22. Investigating officer James Kujur (PW-6) has stated in para 2 of his evidence that on July 29, 2013, at 8:30 A.M., accused Vinay Khes, son of late Silberius Khes, resident of Goria, Narayanpur Police Station, came to the police station and lodged a report to the effect that his first mother had died. His father Siberius Khes has married Anjela Khes for second time. His step mother does not treat accused Vinay Khes well. His father also remains under the control of his mother and he got married to Princila Tirki of village Budhadand on 11th June, 2013. His wife Princila did not like his marriage, due to which there were frequent disputes. His wife also used to support the parents of the accused. In the year 2012, the accused had black spots on his face which did not get cured 14 by medical treatment, so he was getting it treated by a Vaiya. When he got treatment from a Vaiya, his father and mother used to suspect him saying that he was going to learn black magic (jadu tona). The accused had a dispute with his mother Angela Khes, father Silberius and wife Princila Khes. On 29.07.2013 at 2.30 A.M. regarding this matter, due to the dispute, he killed his mother, father and wife by assaulting them on the head with axe. The dead bodies of all three are locked in the room, axe is kept in the kitchen and he has taken off his blood stand clothes and kept them in the kitchen and has come to the police station after locking the house. He had kept the key in the pocket of his other pant. In para 4, he has stated that on the same day at 9.30 A.M., memorandum statement of accused Vinay Khes was taken in front of witnesses Ramprasad and Goodfied. He had stated that the axe with which he killed his parents and wife by assaulting them on the head, he has kept that axe and clothes he was wearing at the time of the incident in the kitchen. 23. Memorandum statement of the appellant was recorded vide Ex.P- 6 and on the basis of his memorandum statement, axe was seized at the instance of the appellant vide Ex.P-7and as per FSL report (Ex.P-35), blood group proved on t-shirt (Article D) and axe (Article E). 24. At this stage, it would be appropriate to notice Section 27 of the Indian Evidence Act, 1872, which states as under: - 15 “27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” Obje 25. Section 27 of the Indian Evidence Act is applicable only if the confessional statement relates distinctly to the fact thereby discovered. 26. The Supreme Court in the matter of Asar Mohammad and others v. State of U.P., AIR 2018 SC 5264 with reference to the word “fact” employed in Section 27 of the Evidence Act has held that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. It has been further held that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place and it includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. Their Lordships relying upon the decision of the Privy Council in the matter of Pulukuri Kotayya v. King Emperor, AIR 1947 PC 67 observed as under: - “13. It is a settled legal position that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. The discovery of fact arises by reason of the fact that the information given by the accused exhibited 16 the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. It will be useful to advert to the exposition in the case of Vasanta Sampat Dupare v. State of Maharashtra1, in particular, paragraphs 23 to 29 thereof. The same read thus: “23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor (supra) has held thus: (IA p. 77) “… it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. xxx xxx xxx xxx xxx xxx xxx xxx xxx” 1 (2015) 1 SCC 253 17 27. The Supreme Court in the matter of Perumal Raja alias Perumal v. State, Rep. By Inspector of Police, 2024 SCC OnLine SC 12 has defined the ‘custody’. It held that the expression “custody” under Section 27 of the Evidence Act does not mean formal custody. It includes any kind of restriction, restraint or even surveillance by the police. Even if the accused was not formally arrested at the time of giving information, the accused ought to be deemed, for all practical purposes, in the custody of the police. 28. The Supreme Court in the matter of Boby v State of Kerala, 2023 SCC OnLine SC 50 held that the basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. Section 27 puts a bar to use the confessional statement, but the fact that discovery and information which proved to reliable would be a circumstantial evidence. 29. In the present case, deceased Silberius Khes, Smt.Angela Khes and Smt.Princila were the father, mother and wife of the appellant. They lived together. The deceased had no old enmity with the accused. Rather according to the facts that have come to light, on the date of incident, the accused had gone to a Vaidya for 18 treatment of black spot on his face, from where when he returned late at night, the deceased simply asked him where he had gone till so late at night, whether he had gone to a Vaidya to learn black magic (jadu tona), which agitated the accused, first of all, assaulted his wife Smt.Princila Khes on the head with axe and caused serious injuries. Seeing him assaulting, the remaining deceased came to him, then the accused assaulted them also with the same axe and caused serious injuries on their heads, due to which all three died on the spot. 30. Considering the statements of the prosecution witnesses, particularly the statement of Smt.Vipin Ekka (PW-2), further considering the material available on record and also considering the finding recorded by the trial Court, postmortem reports (Exs.P- 31 to P-33) of the deceased, FSL report (Ex.P-35) and evidence of investigating officer Jamesh Kujur (PW-6), we are of the considered opinion that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence under Section 302 (three times) of the IPC. We do not find any illegality or irregularity in the findings recorded by the trial Court. 31. For the foregoing reasons, the criminal appeal being devoid of merit is liable to be and is hereby dismissed. 32. It is stated at the Bar that the the appellant is in jail, he shall serve out the sentence as ordered by the learned trial Court. 19 33. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. 34. 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/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Bablu