(Cr.A.No.686/2015) 2025:CGHC:54773-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 686 of 2015 {Arising out of judgment dated 29-5-2015 in Sessions Trial No.2/2015 of the Sessions Judge, Baloda Bazaar} Deepak Kurre, S/o Rathram Kurre, Aged about 25 years, R/o Village Kot, Thana Sarsiwa, District Baloda Bazar-Bhatapara, Chhattisgarh ... Appellant versus State of Chhattisgarh, Through Police Station Sarsiwa, District Baloda Bazar-Bhatapara, Chhattisgarh ... Respondent For Appellant : Mr. Deepak Jain, Advocate. For Respondent : Mr. Afroz Khan, Panel Lawyer. Division Bench: - Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Sanjay Kumar Jaiswal, JJ. Judgment On Board (11/11/2025) Sanjay K. Agrawal, J. 1. This appeal under Section 374(2) of the CrPC is directed against the impugned judgment & order dated 29-5-2015 passed by the Sessions Judge, Baloda Bazaar in Sessions Trial No.2/2015, by which the sole appellant herein has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life & pay a fine SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2025.11.12 11:08:50 +0530 (Cr.A.No.686/2015) of ₹ 500/-, in default of payment of fine to further undergo additional simple imprisonment for one month. 2. Case of the prosecution, in short, is that on 12-5-2014 at about 1 p.m.-1.30 a.m., at Village Kot, Police Station Sarsiwa, District Baloda Bazaar-Bhatapara, the appellant strangulated his wife Ombai and caused her murder and thereby committed the offence. Written report was lodged by the father of the deceased namely, Subhash Mahilane (PW-1) vide Ex.P-1. Inquest was conducted on the dead body of deceased Ombai vide Ex.P-3. Crime details form Ex.P-4 was prepared by the Investigating Officer and spot map Ex.P-14 was prepared by the Patwari. Dead body of the deceased was subjected to postmortem and postmortem was conducted by Dr. Pushpendra Vaishnav (PW-6) vide Ex.P-9 who found cause of death to be asphyxia due to excessive bleeding and nose bone fracture. Query report was given by Dr. Pushpendra Vaishnav (PW-6) vide Ex.P-10. The accused was arrested vide Ex.P-17 and his memorandum statement was recorded vide Ex.P-20 pursuant to which gamcha was seized from him vide Ex.P-12. Seized articles were sent for chemical examination to the Forensic Science Laboratory, Raipur from where report Ex.P-22 was received according to which no poison was found on Articles A, B, C & D. 3. 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 (Cr.A.No.686/2015) committed to the Court of Sessions, Baloda Bazaar where the trial was conducted. 4. The accused/appellant abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as eleven witnesses and exhibited 22 documents. The defence has neither examined any witness nor exhibited any document in support of its case. 5. The trial Court upon appreciation of oral and documentary evidence on record and considering the homicidal nature of death of the deceased and also considering that it is the appellant who has caused the murder of the deceased, proceeded to convict and sentence him under Section 302 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. 6. Mr. Deepak Jain, learned counsel appearing on behalf of the appellant herein/accused, would submit that the trial Court is absolutely unjustified in convicting and sentencing the appellant herein under Section 302 of the IPC with the aid of Section 106 of the Indian Evidence Act, 1872 (for short, ‘the Evidence Act’), as there is no evidence on record to hold that the appellant was there on the date and time of offence allegedly committed, as such, the appellant is entitled for acquittal. 7. Mr. Afroz Khan, learned Panel Lawyer appearing on behalf of the State/respondent, would oppose the appeal and support the (Cr.A.No.686/2015) impugned judgment and submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and therefore the trial Court is absolutely justified in convicting him for the murder of his wife Ombai. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record with utmost circumspection. 9. The first and foremost question for consideration is, whether the death of the deceased was homicidal in nature? 10. The trial Court upon appreciating oral and documentary evidence available on record and considering the postmortem report Ex.P-9, which has been proved by Dr. Pushpendra Vaishnav (PW-6), has rightly held that the nature of death of the deceased was homicidal. The finding recorded by the trial Court that the death of deceased Ombai was homicidal in nature, is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 11. The trial Court has relied upon five incriminating circumstances as laid down by it in paragraph 18 of the judgment, first and second are that the appellant and the deceased used to quarrel with each other and one day prior to the incident, the deceased has informed her brother Ramnarayan (PW-2) and her sister-in-law (bhabhi) Jyoti (PW-5) about the quarrel took place between her and her husband i.e. the accused/appellant herein, however, this fact may be relevant, (Cr.A.No.686/2015) but that cannot be made basis for conviction of the appellant under Section 302 of the IPC. 12. As far as the third incriminating circumstance is concerned, we had already affirmed the death of the deceased to be homicidal in nature, in the preceding paragraph of this judgment. 13. The fourth incriminating circumstance was, on the date and time of offence, the appellant was present in the house along with the deceased, thereby applying Section 106 of the Evidence Act, the appellant has been convicted. 14. Now, the question for consideration is as to whether Section 106 of the Evidence Act would be applicable or not? 15. At this stage, it would be appropriate to quote Section 106 of the Evidence Act, which provides 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.” 16. In a recent decision of the Supreme Court in the matter of Manharan Rajwade v. State of Chhattisgarh1, their Lordships have clearly held that for invoking Section 106 of the Evidence Act, the prosecution ought to have discharged the burden on it by adducing cogent evidence to prove the appellant’s presence at the relevant time in his house, and in paragraphs 7 to 10 observed as under: - 1 2024 SCC OnLine SC 1836 (Cr.A.No.686/2015) “7. For invoking Section 106 of the Evidence Act, the prosecution ought to have discharged the burden on it by adducing cogent evidence to prove the appellant's presence at the relevant time in his house. In this case, going by the evidence of PW-1, the deceased had already died before 5:00 p.m., and the said witness stated that the appellant came back home at 7:00 p.m. There is no evidence to prove the theory of the last seen together. Therefore, the prosecution has not discharged the burden on it to prove that the appellant was last seen together with the deceased wife. Thus, Section 106 of the Evidence Act cannot be invoked to shift the burden on the appellant. 8. Even the appellant's answer given to question no. 27, if taken in its entirety, does not support the prosecution. The appellant vaguely stated that he came back around 4:00-5:00 p.m. when PW-1 and PW-2 were in the house and told him that the deceased was not talking and moving. Thus, he reached home after the death of his wife. The allegation was that the death was caused due to strangulation by the appellant. 9. Therefore, the prosecution has miserably failed to prove the only circumstance it relied upon, namely, that the appellant and the deceased were last seen together. Therefore, the prosecution has failed to bring home the charge of the offence of murder punishable under Section 302 of the IPC. 10. Hence, the impugned judgments and orders are set aside, and the appellant is acquitted of the offence alleged against him. The appellant shall be forthwith set at liberty unless his detention is required in any other case.” 17. Coming to the facts of the case, most of the witnesses namely, Subhash Mahilane (PW-1) – father of the deceased, Ramnarayan (PW-2) – brother of the deceased, Budhiyarin Bai (PW-4) – mother of the deceased and Jyoti (PW-5) – sister-in-law (bhabhi) of the deceased, are not residing along with the appellant and the deceased. Villager Pyarelal Kurre (PW-8), who has also been examined, did not see the appellant on the date and time of offence and at 1-1.30 p.m. the appellant, who came from town along with his child, shouted (Cr.A.No.686/2015) whereupon they saw that Ombai was dead. As such, though the incident has taken place in the house of the appellant, but there is no evidence on record that the appellant was present on the date and time of offence, as according to Devmati (PW-7), who is an independent witness, she has seen the deceased in the morning on the date of offence doing household work, however, this witness has denied the suggestion that the appellant has murdered the deceased and was present in the house on the date and time of offence. As such, there is absolutely no evidence on record that the appellant was present on the date and time when the murder was committed. In that view of the matter, the trial Court could not have invoked Section 106 of the Evidence Act and convicted the appellant for offence under Section 302 of the IPC. 18. The last incriminating circumstance that has been relied upon by the trial Court is, non-explanation on the part of the accused relating to abnormal death of deceased Ombai, which may be one of the circumstances, but on the basis of such non-explanation, the accused cannot be convicted under Section 302 of the IPC. 19. For the foregoing reasons, we set aside the conviction so recorded and the sentences so awarded by the trial Court to the appellant vide the impugned judgment dated 29-5-2015. The appellant is acquitted of the charge under Section 302 of the IPC. He is on bail. He need not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC. Page 8 of 8 (Cr.A.No.686/2015) 20.The appeal stands allowed. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Soma