1 2025:CGHC:54742-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on : 06-08-2025 Judgment delivered on : 11-11-2025 CRA No. 1962 of 2019 Tumeshwar Sahu, S/o Nain Singh Sahu, aged about 31 years, R/o Gandhi Colony, Sirsa Road, Kohka, Police Station Supela, Bhilai, Distt. Durg (CG) Pin 490023 ... Appellant versus State Of Chhattisgarh Through Police Station Supela, Distt. Durg (CG) ... Respondent For Appellant : Mr. Raghvendra Pradhan and Mr. Vikram Pratap, Advocates. For Respondent : Ms. Nand Kumari Kashyap, Panel Lawyer Hon'ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Amitendra Kishore Prasad, JJ CAV Judgment Per Rajani Dubey, J Challenge in this appeal is to the legality and validity of the judgment of conviction and order of sentence dated 15.10.2019 passed 2 by the First Additional Judge to the Court of First Additional Sessions Judge, Durg in ST No.42/2018 whereby the accused/appellant stands convicted and sentenced as under: Conviction Sentence Under Section 302 of Indian Penal Code. Imprisonment for life, pay a fine of Rs.300/- and in default thereof to suffer additional RI for three years. Under Section 201 of Indian Penal Code. RI for three years, pay a fine of Rs.100/- and in default thereof to suffer additional RI for one year. Both the sentences were directed to run concurrently. 02. Case of the prosecution, in brief, is that deceased Yamini Sahu was married to the appellant on 9.5.2017 at Village-Kuthrail and after marriage they started living at Gandhi Colony, Kohkla, PS-Supela, Distt. Durg. On 13.12.2017 the accused had gone to Raipur for doing the work of roller operator and returned at 2 in the night. On the fateful night, there was quarrel between the accused and the deceased over character of the deceased and during this process, the accused strangulated her with a gamchha and committed her murder. Thereafter, in order to cause disappearance of the evidence of crime, the accused cut her hair braid and threw it away. At around 4 am the accused lodged a report with the police regarding her murder by strangulation on which Merg No.102/17 (Ex.P/9) was registered. During investigation, inquest over the dead body was performed, 3 postmortem of the deceased was conducted, spot maps were prepared and statements of the witnesses were recorded. After completion of usual investigation charge sheet under Sections 302, 304B and 201 of IPC was filed against the accused/appellant followed by framing of charges accordingly by learned trial Court, to which the accused abjured his guilt and prayed for trial. 03. In order to substantiate its case the prosecution examined 13 witnesses in all. 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. In his defence he examined one Mahesh Verma as DW-1. 04. 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. 05. Learned counsel for the appellant would submit that the impugned judgment is per se illegal and contrary to the material available on record. He submitted that even though the learned trial Court acquitted the accused of the charge u/s 304B of IPC, yet invoked presumption u/s 113B of Evidence Act for convicting him u/s 302 & 201 of IPC. The prosecution failed to prove any motive with the 4 accused/appellant to commit this offence. Learned trial Court also found that motive of murder is not clear in this case, and then relied upon admission of the accused in his memorandum (Ex.P/5) which is not legally sustainable in view of provisions of Section 27 of the Evidence Act and Article 20(3) of the Constitution of India. He would next submit that though the gamchha was allegedly recovered on the memorandum of the accused as per seizure memo Ex.P/6 on 27.12.2017 yet the same was forwarded for medical opinion to the doctors, who conducted autopsy, after 3 months of recovery and no explanation for this inordinate delay has been offered by the prosecution. Furthermore, the prosecution admitted that the recoveries made vide Ex.P/6 were sealed whereas it is apparent from the record that the same articles were received by PW-10 unsealed. Learned counsel for the appellant further argued that the learned trial Court heavily relied upon the memorandum of the accused and the recoveries made pursuant thereto. Even if such recovery is admitted, the prosecution was obliged to discharge the burden of proving that the articles so recovered has any relevancy with the corpus delicti. None of the expert witnesses have a clear consensus on what could have been used to allegedly strangulate the deceased if at all she was strangulated. The evidence of PW-10 Dr. SK Agrawal and PW-12 Dr. Vinita Dhruwe also does not support the prosecution case on the point that the seized scarf was used for strangulation of the deceased. He would submit that in view of the inconsistencies in the spot maps 5 (Ex.P/4 & P/8), seizure of the scissors used for cutting the braid of the deceased by the appellant pursuant to his memorandum, is also doubtful. The reliance placed on the judgment of this Court in the matter of Lal Bahadur Singh by learned trial Court is in fact misplaced for the said case is entirely distinguishable on facts from the present one. In the instant case, the accused did not flee from the spot, rather he informed the police about death of his wife; at the relevant time there were other family members i.e. parents, younger brother and brother’s wife present in the house and that the prosecution has miserably failed to prove the weapon of murder. Thus, looking to the nature and quality of evidence, it is crystal clear that the prosecution has failed to prove its case against the appellant beyond reasonable doubt and therefore, the appellant deserves to be acquitted of the charges by giving him benefit of doubt. Reliance has been placed on the judgment dated 7th April, 2025 of the Hon’ble Supreme Court in CRA No.2605/2024 in the matter of Jagdish Gond Vs. State of Chhattisgarh and others and the judgment dated 4.3.2024 of this Court in CRA No.995/2017 in the case of Amrit Jangade Vs. State of CG. 06. On the other hand, learned counsel for the State opposing the contention of the appellant would submit that in view of oral and documentary evidence on record, the learned trial Court has rightly convicted and sentenced the appellant by the impugned judgment 6 which calls for no interference by this Court. The present appeal being without any substance is liable to be dismissed. 07. Heard learned counsel for the parties and perused the material available on record. 08. It is clear from the record of learned trial Court that the appellant was charged under Sections 302, 201 and 304B of IPC and after appreciation of oral and documentary evidence, learned trial Court while acquitting him of the charge u/s 304B of IPC, convicted and sentenced him as mentioned in para 1 of this judgment. 09. It is no disputed before learned trial Court that deceased Yamini Sahu was wife of the accused/appellant and their marriage took place on 9.5.2017 and she died at her matrimonial home on 14.12.2017. 10. The first question to be decided by this Court is whether death of Yamini Sahu is homicidal in nature or not? 11. PW-9 Ashish Yadav, Inspector, states that on the information being given by the accused on 14.12.2017 regarding death of his wife Yamini Sahu, he recorded Merg Intimation No.102/17 (Ex.P/9) which bears his signature from A to A part and that of the accused from B to B part. Thereafter, he intimated about lodging of this merg intimation to Sub Divisional Magistrate, Chhawni, Distt. Durg vide Ex.P/10. He gave 7 an application for postmortem to the District Medical Officer, District Hospital, Durg vide Ex.P/111 which bears his signature from A to A part. 12. PW-8 Lalan Singh, Sub Inspector, states that on 14.12.2017 he lodged FIR bearing No.1151/17 u/s 302, 304B & 201 of IPC vide Ex.P/7 on the basis of Merg Intimation No.102/17, which bears his signature from A to A part. 13. PW-13 Ashwani Kumar Sharma, Naib Tehsildar and Sub Divisional Magistrate, states that in presence of witnesses he conducted inquest over the dead body of Yamini Sahu vide inquest memo Ex.P/2 which bears his signature from B to B part. The dead body was lying in the bedroom with no injury except strangulation marks on neck. 14. PW-1 Tejram Sahu, father of the deceased and PW-3 Yashwant Kumar Sahu, brother of the deceased, admit their signatures on inquest notice (Ex.P/1) and inquest memo (Ex.P/2) from A to A and B to B part respectively. 15. PW-10 Dr. SK Agrawal states that postmortem of the deceased was conducted by a team of three doctors comprising of Dr. Shravan Doneriya, Dr. Vinita Dhruve and himself. They noticed following symptoms/injuries on the dead body: “Dead body of a young female. Eyes closed, mouth partial open, abrasion ½ cm x ½ cm present on upper lip mid. Ligature mark 8 with abrasion two-size ½ cm x ½ cm present half circular in anterior part of neck, extend from mid part of neck to left of neck, colour – dark brown, length 8 cm width ½ cm, cyanosis present, rigor mortis present.” In their opinion, the cause of death is asphyxia due to strangulation and the death occurred within 24 hours. The postmortem report is Ex.P/12 and this witness admits his signature thereon from A to A part. He also examined the rope, braid with hair pin and mobile charger. Upon examination of a gamchha produced before him by the police, he opined that death of Yamini Sahu could be caused by strangulation with this gamchha. His query report is Ex.P/13 which bears his signature from A to A part. 16. PW-12 Dr. Vinita Dhurve examined the uterus and private parts of the deceased and also prepared vaginal slides for chemical examination. She admits her signature on postmortem report Ex.P/12 from B to B part. In cross-examination of these doctors, the defence could not elicit anything which could make their evidence doubtful or untrustworthy. 17. In view of the above, unrebutted and consistent oral and medical evidence available on record, this Court is of the opinion that the prosecution has been successful in proving the fact that death of Yamini Sahu was due to strangulation and it was homicidal in nature. 9 As such, learned trial Court has committed no illegality in recording such finding. 18. The next question to be considered by this Court is whether it is the accused/appellant who is author of the crime in question? 19. PW-1 Tejram Sahu, father of the deceased, states that on 14.12.2017 brother-in-law of Yamini Sahu telephonically informed him that she is critically ill and asked him to come immediately. Thereupon he along with his younger son Bhupendra Sahu and Sitesh left for Kohka and reached the house of the accused at 6 am. When he peeped into the room of Yamini, she was found lying dead on her bed with some mark on her neck. On being asked, the accused gave him evasive reply. In cross-examination he denies the suggestion that he gave articles at the time of marriage voluntarily and then states that it were demanded. However, he states that Yamini had a mobile phone, she used to talk to them off and on happily. He also admits that since his daughter died, he is stating about harassment to her by the accused. He admits that he has not seen anyone beating her daughter. 20. PW-2 Suniti @ Kunti, aunt of the deceased, states that after receiving information about death of Yamini Sahu when she reached the house of the accused, she saw strangulation mark on her neck. She states that Yamini used to tell her that her in-laws and husband torture her for dowry. In cross-examination she admits that no demand 10 of dowry was raised by them earlier but raised after engagement and that they did not convene any social or family meeting in this regard. She then volunteers that they demanded only general articles, therefore, no meeting was held. On being asked whether they would not have reported had Yamini not died, she replied that had they kept her properly, report would not have been lodged. 21. PW-3 Yashwant Kumar Sahu, brother of the deceased, states that Yamini used to tell him about harassment by the accused and his family members for dowry. PW-4 Bhupendra Kumar Sahu, uncle of the deceased, supported the statement of PW-1 and admitted his signature on the seizure memo Ex.P/3 from B to B part. PW-6 Smt. Hembai, aunt of the deceased, states that the deceased used to tell that the accused and his family members taunt her for bringing less dowry and demand car. 22. Learned trial Court after appreciation of evidence of all the witnesses found that there is omission and contradiction in the statements of the witnesses regarding demand of dowry and harassment therefor. The witnesses admitted that no demand was raised at the time of fixing marriage but made after engagement and that they did not hold any social or family meeting in this regard. Thus, looking to the overall evidence, the learned trial Court did not find the essential ingredients constituting the offence u/s 304B of IPC proved and accordingly, acquitted the accused/appellant of this charge. This 11 Court also finds no illegality in this finding of learned trial Court and therefore, the statements of all these witnesses regarding demand of dowry and torture in connection therewith are immaterial. However, as per postmortem report (Ex.P/12), Yamini Sahu died due to strangulation, so we have to examine the other material on record to ascertain whether it is the appellant who is perpetrator of this crime. 23. PW-7 Vokesh Kumar Sahu, cousin of the deceased, states that the police recorded memorandum of the appellant Ex.P/5 in his presence where he disclosed strangulation of the deceased with a scarf and in order to mislead the police cut her hair with scissors and threw the scissors on the field and concealed the scarf in his room. He admits his signature on the memorandum from A to A part. In his presence, the police recovered the scarf from the room of the accused and at the instance of the accused, the scissors was also seized as per seizure memo Ex.P/6 which bears his signature from A to A part. This witness remained firm in his cross-examination and fully supported the prosecution case. 24. PW-13 Ashwani Kumar Sharma, Naib Tehsildar, prepared inquest memo Ex.P/2 before panch witnesses. During inquest, it was noticed that the lower part of the hair was cut. As per application for postmortem (Ex.P/11), following query was raised by the prosecution - 12 1- e`frdk ds 'ko dk vaxqy uk[kqu ds vxz Hkkx dks usydVj ls fiztZo djus dh d`ik djsa A 2- e`frdk ds cky dVk gqvk Hkstk tk jgk gS d`i;k tkap dj crk;s fd fdl oLrq ls dkVk x;k gS A 3- e`frdk ds xqIrkax esa igus gq;s v.Mjfo;j fiztZo dj Hkstus dh d`ik djsa A 4- e`frdk ds xqIrkax dk LykbM rS;kj dj Hkstus dh d`ik djsA 5- ?kVuk LFky ds ikl feyh jLlh vkSj pktZj (eksckby) Hkstk tk jgk gS D;k blls e`frdk ds xys esa vk;h pksV ls esy [kkrh gS A 6- e`frdk ds 'ko MkDVjh Vhe ls djkus dh d`ik djs ftlesa ,d efgyk fpfdRld vf/kdkjh gksA 7- 'kkVZ PM rRdky nsus dh d`ik djs A vU; dksbZ lk{; gks rks laxzfgr djus dh d`ik djsA Dr. SK Agrawal (PW-10) states in para 3 of his deposition that braid of the deceased with hair pin was sent by the prosecution for examination vide Ex.P/.11. In the memorandum Ex.P/5, the accused/appellant disclosed that he cut the hair of the deceased and threw the scissors in his backyard. As per seizure memo Ex.P/6, the police recovered the scissors from the backyard of the appellant. 25. Learned counsel for the appellant contended that the appellant had gone for his duty in the morning and returned at night only. He strongly objected to the evidentiary value of this article – scissors on the ground that as per statement of Patwari Sushil Kumar Dharmik 13 (PW-5) the place of incident is accessible to anyone. The prosecution has failed to prove last seen theory and other circumstances against the appellant beyond reasonable doubt and as such, he is entitled to be acquitted of all the charges by giving him benefit of doubt. 26. Merg Intimation Ex.P/9 makes it clear that the accused/appellant himself informed the police that on 13.12.2017 at 7 am he left his home for Urla, Raipur in connection with his work of Roller Operator and his wife was at home with the family. On 14.12.2017 at 2 am he returned home from Urla, the door was opened by his father and he went to his room in the first floor. He called out Yamini and when his wife did not respond, he informed his parents and they shook her body, however, she had died. As per inquest memo Ex.P/2, the dead body of Yamini was found in her bedroom. The spot map Ex.P/4 makes it clear that bedroom of the appellant is on the first floor and according to the appellant when he returned from work the main gate was closed from inside and it was opened by his father. In his memorandum, he disclosed about throwing the scissors in his backyard and the same was recovered from there only. Looking to the inquest memo and postmortem report it is clear that braid of the deceased was cut just to mislead the police that she was done to death by playing some witchcraft whereas from the oral and medical evidence it is proved that her death was homicidal in nature and in order to cause disappearance of the evidence of crime her braid was cut. It is also proved by the 14 prosecution that the deceased was found dead in her bedroom which was at the first floor and at that time the appellant was with her. The merg intimation was lodged by the appellant on 14.12.2017 at 4 am where he stated to have returned home from work at 2 am and found his wife dead in his bedroom. 27. In case where house murder is the issue, heavy burden is on the shoulders of the accused to explain as to under what circumstances the deceased died. While dealing with the matter involving the murder committed inside the house it has been held by the Apex Court in the matter of Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681 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. (See Stirland v. Director of Public Prosecutions (1944 AC 315) – quoted with approval by Arijit Pasayat, J in State of Punjab v. Karnail Singh (2003) 11 SCC 271). 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 held. The duty on the prosecution is to lead such evidence which it is capable of 15 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 travelling on a railway without ticket. The burden of proving that he had a ticket is on him.” 15. Where an offence like murder is committed in secrecy inside a 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 of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offeirng 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 an accused to offer any explanation.” 28. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts. 16 29. Now if the facts of the present case are seen in the light of the afore-quoted judicial pronouncement, picture which emerges is almost identical. The death of the deceased in this case undisputedly took place inside the privacy of room of the house where the accused and deceased were living. In the cases like the present one, the assailant has all the opportunity to plan and commit the crime at the time and in the circumstances of his choice and it is extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence is insisted upon. The accused/appellant in his statement recorded under Section 313 of the Code of Criminal Procedure has not offered any explanation as to how the death of his wife occurred and rather he denied or pleaded ignorance about even those circumstances successfully proved by the prosecution. This also serves as an additional link in the chain of circumstances pointing towards guilt of the accused/appellant. 30. In the matter of S. Govindaraju Vs. State of Karnataka, (2013) 15 SCC 315 the Hon’ble Supreme Court held as under: “29. It is obligatory on the part of the accused while being examined under Section 313 Cr.P.C., to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and 17 he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (Vide: Munish Mabar v State of Haryana, AIR 2013 SC 912). 31. The prosecution successfully proved its case and, therefore, provisions of Section 113 of the Evidence Act 1872 come into play. The appellant/accused did not make any attempt, whatsoever, to rebut the said presumption contained therein. More so, Shanthi, deceased, died in the house of the appellant. He did not disclose as where he had been at the time of incident. In such a fact-situation, the provisions of Section 106 of Evidence Act may also be made applicable as the appellant/accused had special knowledge regarding such facts, though he failed to furnish any explanation thus, the court could draw an adverse inference against him.” 31. In the present case, the appellant in his statement u/s 313 of CrPC stated that he is innocent, at the time of incident he had gone to his work; they never tortured the deceased nor demanded dowry and expressed ignorance as to the manner in which she died. The defence also failed to prove the fact that the appellant returned home at 2 am from his work. Thus, looking to the consistent oral evidence coupled with the unrebutted medical evidence as also the conduct of the appellant, we are of the opinion that the learned trial Court after minute appreciation of oral and documentary evidence rightly recorded a finding of guilt against the appellant that it is he who committed murder of his wife Yamini Sahu by strangulation and thereafter in order to 18 cause disappearance of the evidence of crime and mislead the police cut braid of the deceased with scissors, concealed the scarf (gamchha) and threw the scissors in his backyard. As regards the judgments cited by the appellant, having gone through the same, we find that they being distinguishable on facts are of no help to him. 32. In the result, the appeal being without any substance 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. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. A copy of this judgment be also forwarded to the concerned Jail Superintendent where the appellant is undergoing the sentence. Sd/ Sd/ (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge The date when the judgment is reserved The date when the judgment is pronounced The date when the judgment is uploaded on the website Operative Full 6.8.2025 11-11-2025 11-11-2025 Khan MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN Date: 2025.11.11 15:06:39 +0530