1 2025:CGHC:57428-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1604 of 2018 {Arising out of judgment dated 25.08.2018 passed in Sessions Trial No.89/2017 by the learned First Additional Sessions Judge, Ambikapur, District Surguja} Kishan Yadav @ Golu, S/o. Hemlal Yadav, Aged About 22 Years, R/o. Village Bhitthikala Mahuatikara, Chowki Manipur, Police Station Ambikapur, District Surguja, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through Police Of Police Chowki Manipur, Police Station Ambikapur, District Surguja, Chhattisgarh. ... Respondent For Appellant : Mr. Govind Dewangan, Advocate For Respondent : Mr. Ankur Kashyap, Dy. Govt. Advocate (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (26.11.2025) ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.11.26 16:31:45 +0530 2 Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction & order of sentence dated 25.08.2018, passed by the learned First Additional Sessions Judge, Ambikapur, District Surguja in Sessions Trial No. 89/2017, by which the sole appellant herein has been convicted for offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.100/-, in default of payment of fine, 1 month’s additional rigorous imprisonment. 2. Case of the prosecution, in brief, is that, on 28.06.2017 at 10:30 P.M. at Village- Bhatthikala Mahuwatikra, Police Chowki- Manipur, Police Station- Ambikapur, District Surguja, the appellant herein murdered his grand-father Budhram Yadav (now deceased) by axe and thereby, the aforesaid offence has been committed. Hemlal Yadav (PW-3), son of deceased, reported the matter to the police, pursuant to which, Merg Intimation was registered vide Ex.P-7, FIR was registered vide Ex.P-6, Inquest was conducted vide Ex.P-12 and dead body of deceased Budhram was subjected to post- mortem, which was conducted by Dr. Ashok Kumar Toppo (PW-2), who proved the post-mortem report vide Ex.P-4, 3 according to which, cause of death was stated to be hemorrhagic shock due to neck injuries and death was homicidal in nature. The weapon of offence i.e. Axe was seized vide Ex.P-15 and Baniyan of appellant was seized vide Ex.P-1, which were sent for chemical examination to FSL along-with other seized items and as per the FSL report (Ex.P-30), human blood was found on the Axe and blood was found on the Baniyan. After due investigation, the appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, the prosecution examined as many as 14 witnesses and exhibited 32 documents and the appellant-accused in support of his defence has not examined any witness, but has exhibited one document Ex. D-1. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of I.P.C. and sentenced him for life 4 imprisonment against which the present appeal has been preferred. 5. Mr. Govind Dewangan, learned counsel for the appellant, would firstly submit that Section 106 of the Indian Evidence Act would not be applicable, as in para 39 of the impugned judgment, the trial Court has clearly recorded a finding that apart from the deceased, along-with the appellant, his grand- mother Budhyaro (PW-10) was also present on the spot at the time of incident. He would secondly submit that the seizure witnesses Omprakash Yadav (PW-4) and Teju @ Keshav Yadav (PW-7) both have turned hostile and they have not supported the case of the prosecution and mainly on the basis of the FSL report, conviction cannot be made and furthermore, there is no other evidence to convict the appellant. As such, the impugned judgment of conviction is liable to be set aside and the appeal deserves to be allowed. 6. Mr. Ankur Kashyap, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence and, therefore, the appeal deserves to be dismissed. 5 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first question for consideration as to whether the death of deceased Budhram was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-4) proved by Dr. Ashok Kumar Toppo (PW-2), according to which, cause of death was stated to be hemorrhagic shock due to neck injuries, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. It is the case of the prosecution that Budhiyaro (PW-10) was eye-witness to the incident but she has turned hostile and has not supported the case of the prosecution. However, the trial court relying upon Section 106 of the Indian Evidence Act has convicted the appellant on the ground of recovery of Axe & Baniyan in which human blood & blood were found. 10. Now, the question for consideration is as to whether Section 106 of the Evidence Act would be applicable or not ? 6 11. At this stage, it would be appropriate to quote Section 106 of the Indian Evidence Act, which 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.” 12. Recently, in the matter of Manharan Rajwade v. State of Chhattisgarh 1 their Lordships of the Supreme Court on the point of Section 106 of the Indian Evidence Act have held in paragraph 7 as under:- “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.” 13. Similarly, the Supreme Court in the matter of Nagendra Sah v. State of Bihar2 held that if the other members of family of appellant were present in house when incident took place, 1 2024 INSC 560 2 (2021) 10 SCC 725 7 Section 106 would not be applicable and it has been held by their Lordships of the Supreme Court as under: - “19. In this case, as mentioned above, neither the prosecution witnesses have deposed to that effect nor any other material has been placed on record to show that the relationship between the appellant and the deceased was strained in any manner. Moreover, the appellant was not the only person residing in the house where the incident took place and it is brought on record that the parents of the appellant were also present on the date of the incident in the house. The fact that other members of the family of the appellant were present shows that there could be another hypothesis which cannot be altogether excluded. Therefore, it can be said that the facts established do not rule out the existence of any other hypothesis. The facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant. *** *** *** *** 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.” 14. Reverting to the facts of the present case, in light of the aforesaid principles of law, it is quite vivid that the trial Court in para 39 of its judgment has clearly recorded a finding that apart from the appellant and deceased, Budhiyaro (PW-10) 8 was also present in the place of incident. In that view of the matter, in light of Manharan Rajwade (supra) & Nagendra Sah (supra), Section 106 of the Indian Evidence Act would not applicable at all, as third person was also present. Therefore, the trial Court has committed grave error in applying Section 106 of the Indian Evidence Act after holding that Budhiyaro (PW-10) was also present at the time of incident apart from the appellant and deceased. 15. The next circumstance is recovery of blood-stained Axe. However, the two seizure witnesses Omprakash Yadav (PW-4) and Teju @ Keshav Yadav (PW-7) both have turned hostile and they have not supported the case of the prosecution. In that view of the matter, the recovery is of no use to the prosecution. Since recovery of seizure of weapon of offence has not been proved, the FSL report (Ex.P-30) in which human blood has been found is also of no use to the prosecution. Similarly, the seizure of Baniyan of appellant in which only blood has been found is also of no use to the prosecution. 16. In that view of the matter, we are of the considered opinion that the appellant is entitled for acquittal on the basis of benefit of doubt. The trial Court is absolutely unjustified in convicting 9 and sentencing the appellant for the offence under Section 302 of I.P.C. Accordingly, the impugned judgment of conviction and order of sentence dated 25.08.2018 is hereby set aside. Consequently, the appellant stands acquitted giving him benefit of doubt from the charge framed against him for the offence under Section 302 of I.P.C. The appellant is already on bail, he need not surrender; however, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 17. In the result, this criminal appeal is allowed. 18. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ashok