1 2025:CGHC:10556 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2015 of 2022 Shyamlal Patel S/o Firtu Patel Aged About 48 Years R/o Village- Gatadih, Police Station- Sarsiwa, District- Balodabazar-Bhatapara, Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through Station House Officer, Police Station- Sarsiwa, District- Balodabazar-Bhatapara, Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Atul Kumar Kesharwani, Advocate. For Respondent(s) : Ms. Shubha Shrivastava, Panel Lawyer. Hon'ble Mr. Ramesh Sinha, Chief Justice Order on Board 04/03/2025 1. Though, today the present appeal has been listed for hearing on I.A. No.1 of 2022, which is an application for suspension of sentence and grant of bail, but with the consent of learned counsel for the parties and considering the period of detention of the appellant, the appeal is heard finally. AKHILESH KUMAR DEWANGAN Digitally signed by AKHILESH KUMAR DEWANGAN 2 2. Accordingly, I.A. No.01 of 2022 stands disposed of. 3. This appeal is directed against the judgment of conviction and order of sentence dated 28.10.2022 passed by the First Additional Sessions Judge (FTC), Balodabazar, District – Balodabazar-Bhatapara (C.G.) in Sessions Case No.45/2019(Crime No.128/2019, P./S. Sarsiwa, District Balodabazar-Bhatapara) 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.1,000/-, in default of payment of fine to further undergo imprisonment for 6 months. 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. Brief facts of the case are that on 13.04.2019, Chamelibai Patel, a resident of Gatadih village, was admitted to the Primary Health Center in Sarsiwa for treatment of her injuries. Inspector N.K. Swarnkar received information about the incident and went to village Gatadih to investigate the matter. Ku. Sulochana Patel, the accused's/appellant’s daughter, informed Inspector Swarnkar that on the day of the incident, she was in her room while her mother, 3 Chamelibai, was making pan in the house. Her father, Shyam Lal Patel, was sitting in the courtyard. Around 4:00 P.M, Sulochana made tea for her parents. After drinking the tea, Shyam Lal suddenly started beating Chamelibai with a stick, causing injuries to her head, mouth, and other parts of her body. During the incident, Sulochana tried to intervene, but her father threatened to beat her as well. Chamelibai fell to the ground in the courtyard, and Shyam Lal fled the scene. Sulochana, the complainant, witnessed the incident and began crying loudly. Her uncle, Sahendra Patel, and aunt rushed to the scene upon hearing her cries. Sulochana informed them about the incident. On the day of the incident, Sulochana's brother, Kartikeshwar Patel, was at his friend Vinod Sarathi's shop. Sulochana sent her younger brother, Ganeshwar Patel, to fetch Kartikeshwar, who immediately returned home with Vinod. 6. At the scene, they found the victim, Chamelibai, lying unconscious in the courtyard, covered in blood. They rushed her to the Government Hospital in Sarasinwa in a four-wheeler. The accused, Shyam Lal Patel, had allegedly attacked Chamelibai with a stick, inflicting fatal injuries on her head, forehead, face, and other parts of her body. Inspector N.K. Swarnkar registered a rural report (Ex-P-04) regarding the incident. The police station in- charge, Sarasinwa, sent a letter to the Community Health Center in Bilaigarh, inquiring about the incident after learning that the injured Chamelibai had been taken there for treatment. The doctor 4 examined her and declared her dead at 8:00 P.M. on 13.04.2019. The police constable from Sarasinwa Police Station submitted the post-mortem report, and a merg report was registered under Section 174 of the Code of Criminal Procedure. The report was sent to the SDM for further investigation. Subsequently, witnesses Navdha Lakshminarayan, Kartikeshwar, Sandeep, and Prahlad Patel were served notice Ex-P-09 for the inquest of the deceased's body. Thereafter, the inquest report Ex-P-10 was prepared, which stated that the deceased's death was caused by injuries inflicted by a stick. The panel of witnesses recommended an autopsy, following which a letter Ex-P-19 was sent to the Community Health Center in Bilaigarh for the autopsy. Constable Yudhishthir Dheerhe (P.W-11) took the deceased to the Community Health Center in Bilaigarh alongwith the aforementioned document and conducted the autopsy. The autopsy report Ex-P-23 was received, and the constable was issued a duty certificate Ex-P-20. 7. After the autopsy, the constable handed over the deceased's body to her relatives, Lakshmi Narayan Patel, in the presence of two witnesses, under Ex-P-22, for cremation. Inspector NK Swarnkar reached the scene and prepared a map of the scene, Ex-P-05. To obtain the Patwari map of the incident site, a letter, Ex-P-6A, was written to the Deputy Tehsildar of Bhatgaon, following which Patwari Surendra Verma prepared a map and site plan, Ex-P-06, after visiting the scene. Inspector NK Swarnkar recorded the First 5 Information Report, Ex-P-30, against the accused and, during the investigation, collected the deceased Chamelibai Patel's blood from the scene, which was sealed in a plastic container after being swabbed with a cloth and picked up. Additionally, blood splatters on the wall of the courtyard were collected and sealed in another plastic container. The blood from the courtyard was collected and sealed in a plastic container. The broken bangles worn by the deceased were also collected and sealed in a plastic container. A seizure memo, Ex-P-02, was prepared in this regard. 8. The statements of Sulochana Patel, the complainant, and her uncle Sahendra Patel were recorded as per their statements. During the investigation, the accused was taken into custody on 14.04.2019, and their memorandum statement, Ex-P-12, was recorded in the presence of witnesses Vinod Sarathi and Rajkumar. The stick used in the murder was seized from the accused and a seizure memo, Ex-P-13, was prepared. The clothes worn by the deceased on the day of the incident, which were blood-stained, were seized during the investigation under Ex-P-14 in the presence of witnesses. The pink blouse, green saree, and green chunni worn by the deceased at the time of the incident were presented by Constable Yudhishthir Dheerhe after the autopsy, which is seized under Ex-P-21 in the presence of witnesses. The seized items included the bamboo stick used in the incident and the appellant’s blood-stained lungi, which were sent to the Community Health Center in Bilaigarh for examination. 6 Reports Ex-P-26-27 were received in this regard. The blood- stained soil and cement from the scene were sent for examination under Ex-P-28A, and report Ex-P-28 was received. 9. An inquiry was made to Dr. Rajesh Pradhan at the Community Health Center in Bilaigarh under Ex-P-25A to determine if the stick used in the incident could have caused the deceased's death. The query report Ex-P-25 was received in this regard. The accused was formally arrested in the presence of witnesses under Ex-P- 34, and their relative Sahendra Patel was informed of the arrest. During the investigation of the incident, the statements of Sulochana Patel, Ganeshwar Patel, Sahendra Patel, Vinod Sarathi, Kartikeshwar Patel, Nathuram Pol, Prahlad Patel, Laxminarayan Patel, and Sandeep Kumar Patel were recorded as per their statements. The seized properties in the case were deposited in the Police Dtation's Malkhana, and later, they were sent to the State Forensic Science Laboratory in Raipur for chemical examination through the Superintendent of Police, Bilaigarh, along with a letter, Ex-P-31. Constable Bharatbhushan Verma deposited the properties at the laboratory, and a receipt, Ex-P-32, was obtained. The chemical examination report, Ex-P- 33, was also received. After completing the entire investigation of the crime, the charge-sheet was presented against the accused in the court of Judicial Magistrate First Class Bhatgaon, who in turn committed the case to the Court of Sessions, Balodabazar, from 7 where the First Additional Sessions Judge (FTC), Balodabazar received the case on transfer for trial. 10. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as 14 witnesses and exhibited the documents (Exs.P-1 to P-34A). 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 1 of the judgment. Hence, this appeal. 11. Learned counsel for appellant would submit that he 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. He submits that incident had taken place on 13.04.2019, there was no pre-meditation and on the spur of moment incident had taken place, it was first offence of appellant and thereafter he had not indulged himself in any other criminal activity. He would further submit that the learned trial Court has sentenced the appellant for ten years rigorous imprisonment and as the appellant has already suffered jail sentence of 5 years 11 months and has already deposited the fine amount of Rs.1,000/- 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 8 undergone by him. 12. 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. 13. 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 disputed by the appellant, otherwise established by the evidence of Dr. Rajesh Pradhan (PW-12). 14. Dr. Rajesh Pradhan (PW-12) conducted post-mortem over the body of deceased and found following injuries:- (1) There are multiple injuries present on body. Laceration present on side of right eye irregular shape bone exposed size approx. (4x1x1 cm). (2) Laceration below right eye (1 x 1 x 2 cm) (depth) bone fracture maxilla bone. (3) Laceration on right side of chin (1 x 1 x 2 cm) (depth) fractured mandible bone. (4) Laceration on front of right ear (1 x 0.5 x 2 cm) (depth) fractured temporal bone. (5) Fractured lower jaw bone. (6) Laceration behind of right ear (2 x 2 x 1 cm) (depth) fractured stall bone. (7) Laceration above wrist joint of right hand (5 x 3 x 1 cm) (depth) fractured of wrist of bone. (8) Whitish discharge present on vagina. As per opinion of the doctor death is due to cardio-respiratory failure as results of multiple injuries to her body. 9 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 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 10 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 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 11 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." 12 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: “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 13 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 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. Ku. Sulochana Patel (PW-3) has stated in paras 2 and 3 of her statement that she did not know anything about the incident. She had gone to work and when she returned, she saw her mother's dead body lying in front of her house. She then went to call her 14 uncle and aunt, but she did not know how her mother died. Nobody told her how her mother died. When the police arrived, she told them that she found her mother's dead body in front of her house when she returned home. When shown the signature on document Ex.P-04, the witness confirmed it was hers. The police had drawn a map in her presence. The witness also confirmed her signature on the site map Ex.P-05. She is not aware if the Patwari visited the site. The witness confirmed her signature on the Patwari map Ex.P-06 and the site map Ex.P-07. 25. Sahendra Kumar Patel (PW-2) has stated that he knows the accused, Shyam Lal Patel, who is in custody. He also knew the deceased, Chameli Bai, and her daughter, Sulochana Patel. This incident occurred about three years ago. Sulochana came to his house around 4:00 P.M., asking him to accompany her to her house. When he arrived with his wife, they found Chameli Bai lying unconscious in the courtyard. Sulochana told him that the accused, Shyam Lal Patel, had beaten his wife, Chameli Bai. However, he did not witness Shyam Lal physically assaulting Chameli Bai. Further in his cross-examination he admitted that the appellant’s mental condition would deteriorate from time to time, and he had been undergoing treatment for it at various places. Whenever the accused would have an epileptic seizure, his family members would become frightened and distressed. During his seizures, the accused would not be aware of his actions or what he was doing. 15 26. It is to be remembered here that homicidal nature of death need not always be proved through direct evidence. It has to be inferred from the circumstances and the nature of injuries noticed on the dead body. The instant case is about the death of a wife committed by the husband within four walls of the house. When the assailant is the husband, it is difficult indeed to get direct evidence on the nature of injuries. It is thus concluded that the deceased died homicidal nature of death. Considering the nature of injuries, which the deceased was found, I am of the considered opinion that death of the deceased was homicidal in nature. It is held accordingly. 27. 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. 28. Considering the statement of Dr.Rajesh Pradhan (PW-12) and his postmortem report (Ex.P-23), 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 16 deceased was found in the courtyard of 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. 29. 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, nature of injuries and further considering the fact that the appellant is confining this appeal in relation to the sentence awarded by the trial Court only, as such, looking to the period of detention of the appellant in jail i.e. 5 years and 11 months of jail sentence, 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, as the appellant has already suffered the agony of criminal trial for so many years, that meets the ends of justice. 30. Consequently, the criminal appel is partly allowed. Conviction of the appellant under Section 304 Part-I of the IPC is hereby maintained, 17 however, his sentence is reduced from RI for 10 years to RI for 7 years. 31. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as modified by this Court. 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 Akhil