(Cr.A.No.501/2017) 2025:CGHC:58342-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 501 of 2017 {Arising out of judgment dated 28-2-2017 in Sessions Trial No.31/2016 of the 1st Additional Judge to the Court of 1st Additional Sessions Judge, Raipur} Vijay Lal Sahu, S/o Punit Ram Sahu, aged about 37 years, R/o Nehru Chowk, Sarora, Police Station Urla, District Raipur, Chhattisgarh. ... Appellant versus State of Chhattisgarh, Through Station House Officer, Police of Police Station Urla, District Raipur, Chhattisgarh. ... Respondent For Appellant : Mr. T.K. Jha and Mr. Rohan Kumbhare, Advocates. For Respondent : Mr. Amit Buxy, Panel Lawyer. Division Bench: - Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Sanjay Kumar Jaiswal, JJ. Judgment On Board (02/12/2025) Sanjay K. Agrawal, J. 1. The sole appellant herein has preferred this appeal under Section 374(2) of the CrPC calling in question legality, validity and correctness of the impugned judgment of conviction & order of sentence dated 28-2-2017 passed by the 1st Additional Judge to the Court of 1st Additional Sessions Judge, Raipur in Sessions Trial No.31/2016, by which he has been convicted for offences under SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2025.12.03 18:00:51 +0530 (Cr.A.No.501/2017) Sections 302 & 201 of the IPC and sentenced to undergo imprisonment for life & pay a fine of ₹ 100/-, in default of payment of fine to further undergo additional rigorous imprisonment for one month and rigorous imprisonment for seven years & fine of ₹ 100/-, in default of payment of fine to further undergo additional rigorous imprisonment for one month, respectively, with a direction that both the sentences shall concurrently. 2. Case of the prosecution, in short, is that in the night of 28-10-2015 at Village Urla, District Raipur, the appellant caused injuries to his wife Dhaneshwari Sahu by a sharp-edged weapon by which she suffered grievous injuries and died, and thereby committed the offence. It is the further case of the prosecution that at the time of offence, Vishnu Sahu (PW-1) – brother of the accused, Yashwant Sahu (PW-3) – another brother of the accused, Hembai (PW-2) – mother of the accused and Vikas Sahu (PW-6) – son of the accused, were present in in the house. Dehati Nalsi were recorded vide Ex.P-1 by Vishnu Sahu (PW-1) against unknown person. Zero merg was registered vide Ex.P-11 and numbered merg was registered vide Ex.P-17. FIR was registered against unknown person vide Ex.P-16 for the offences punishable under Sections 324 & 307 of the IPC. Crime details form Ex.P-20 was prepared by the Investigating Officer and spot map Ex.P-2 was prepared by the Patwari. Inquest was conducted on the dead body of deceased Dhaneshwari Sahu vide Ex.P-6. Dead body of the deceased was subjected to postmortem and postmortem was conducted by Dr. Snigdha Jain (PW-22) vide Ex.P-28 who found as (Cr.A.No.501/2017) many as seven stab injuries over multiple parts of the body like near right eye, lower part of chest, right side of chin, below outer lower right breast, right lateral abdomen, right elbow (bone deep) and three incised wounds. Cause of death was stated to be shock and haemorrhage caused by multiple stab wounds and that incised wounds No.4 & 5 were sufficiently fatal to cause death in ordinary course of nature, and nature of death to be homicidal. The accused was arrested vide Ex.P-15 and his memorandum statement was recorded vide Ex.P-13 pursuant to which weapon of offence iron patasi (chisel) was seized from him vide Ex.P-14. Seized articles were sent for chemical examination to the Forensic Science Laboratory, Raipur from where report Ex.P-24 was received according to which blood was found on Article A – patasi (chisel). The accused/appellant was medically examined vide Ex.P-30 by Dr. (Smt.) A. Dutt (PW-23) who found as many as eleven incised wounds on his body out of which injuries No.1 & 2 were grievous in nature. 3. Statements of the witnesses were recorded under Section 161 of the CrPC. After usual investigation, the accused/appellant was charge- sheeted for offences under Sections 302 & 201 of the IPC and charge- sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions, Raipur from where the learned 1st Additional Judge to the Court of 1st Additional Sessions Judge, Raipur received the case on transfer for trial. 4. The accused/appellant abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many (Cr.A.No.501/2017) as twenty-three witnesses and exhibited 30 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 Sections 302 & 201 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. T.K. Jha, learned counsel appearing on behalf of the appellant, would submit as under: - 1. Section 106 of the Indian Evidence Act, 1872 (for short, ‘the Evidence Act’) would not be applicable as other members of the family namely, Vishnu Sahu (PW-1), Yashwant Sahu (PW-3), Hembai (PW-2) and Vikas Sahu (PW-6) all were present in the house at the time of offence, whereas the trial Court by applying Section 106 of the Evidence Act, has convicted the appellant. 2. Motive of the offence has not been proved, as confessional part of the memorandum statement of the accused/appellant is inadmissible in evidence. Page 5 of 13 (Cr.A.No.501/2017) 3. Witnesses to the memorandum statement and subsequent seizure namely, Tirath Ram Sahu (PW-12) & Domar Sahu (PW- 20) have not supported the case of the prosecution. 4. In the FSL report Ex.P-24, only blood has been found on the weapon of offence patasi. 5. The appellant has suffered grievous injuries which has not been explained by the prosecution and the genesis of the offence has been suppressed by the prosecution. 7. Mr. Amit Buxy, learned Panel Lawyer appearing on behalf of the State/respondent, would oppose the appeal and support the 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 Dhaneshwari Sahu. 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-28, which has been proved by Dr. Snigdha Jain (PW-22), 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 Dhaneshwari (Cr.A.No.501/2017) Sahu 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 case of the prosecution is based on circumstantial evidence. The trial Court has found the following circumstances, which have been culled out in paragraph 40 of the judgment, established against the accused/appellant: - (40) mijksDr lk{; foospuk ds vk/kkj ij fuUufyf[kr rF; nf’kZr o izekf.kr gks jgs gSa %& 1- ?kVuk dh jkr vfHk;qDr vkSj mldh ifRu ?kj ds fdjkuk nqdku esa lksus x;s FksA 2- jkr dks jsrh ds uke ij vfHk;qDr us e`frdk ls >xM+k ekjihV fd;kA 3- vfHk;qDr c<+bZ dk dke djrk gS mlus c<+bZ dk;Z esa iz;qDr iVklh dk mi;ksx fd;kA 4- vfHk;qDr ds fu’kkusnsgh ij mlds ?kj ds ihNs ckMh ds ihNs ukyh ls iVklh cjken fd;k x;kA 5- iVklh es [kwu ds nkx ik;s x;sA 6- ml iVklh ls e`frdk dks pksV vkuk LFkkfir gSA 7- vfHk;qDr dks vkbZ pksV mlds ‘kjhj ds ,sls fgLls ij gS tks Lodkfjr gS rFkk mlh iVklh ls vkuk nf’kZr gksrk gSA 8- vfHk;qDr ds }kjk fn;k x;k Li”Vhdj.k ekU; ;ksX; ugha gSA 12.In order to judge the correctness of the findings recorded by the trial Court it will be appropriate to discuss each and every circumstance one by one, in seriatim. Applicability of Section 106 of the Evidence Act 13.The trial Court has held that Section 106 of the Evidence Act would be applicable, as the accused/appellant and the deceased were (Cr.A.No.501/2017) husband and wife and were staying in one and same portion of the house where the appellant used to run a provisional store/grocery shop. However, the trial Court has not collected full facts. In paragraph 2 of the judgment, the trial Court has recorded a finding that apart from the accused/appellant and the deceased, Vishnu Sahu (PW-1) – brother of the accused, Yashwant Sahu (PW-3) – another brother of the accused, Hembai (PW-2) – mother of the accused and Vikas Sahu (PW-6) – son of the accused, all were residing in the same house and only one part of the house is used by the appellant, and on that day, the appellant and the deceased, both, were residing which is apparent from the crime details form (Ex.P- 20), as besides the place of occurrence, the room of brother of the accused/appellant Yashwant Sahu (PW-3), is there and the room of Vishnu Sahu (PW-1) – another brother of the appellant, is also there and furthermore, Vishnu Sahu (PW-1) has also stated that towards the courtyard, any person can enter into their house and there are total 12 rooms in their house and in the middle, there exists a courtyard surrounded from four sides. 14. 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.” (Cr.A.No.501/2017) 15.The Supreme Court in the matter of Nagendra Sah v. State of Bihar1 has held that where in the house in question apart from the accused and the deceased, other members of the family of the accused are also residing on the date of incident, it shows that there can be another hypothesis which cannot be altogether excluded, and observed 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.” 16.In the present case, admittedly, in the house in question where the appellant and the deceased were sleeping on the date of incident, other members of the family of the appellant namely, Vishnu Sahu (PW-1), Yashwant Sahu (PW-3), Hembai (PW-2) and Vikas Sahu (PW-6), were also present and merely because, the room where the 1 (2021) 10 SCC 725 (Cr.A.No.501/2017) appellant and the deceased were sleeping is separate, it cannot be held that Section 106 of the Evidence Act would be applicable. Since other members of the family of the appellant are also residing along with the appellant and the deceased, the trial Court has erred in applying Section 106 of the Evidence Act and the finding in this regard is hereby set aside. Motive 17.The next circumstance recorded by the trial Court is motive of the offence that there was a quarrel between the appellant and the deceased on account of sand, which has been taken by the trial Court from the memorandum statement of the accused/appellant Ex.P-13. This finding ignores the well settled principle that the statement of an accused recorded by a police officer under Section 27 of the Evidence Act is basically a memorandum of confession of the accused recorded by the investigating officer during interrogation which has been taken down in writing. The confessional part of such statement is inadmissible and only the part which distinctly leads to discovery of fact is admissible in evidence as laid down by the Supreme Court in the matter of State of U.P. v. Deoman Upadhyaya2 (see Babu Sahebagouda Rudragoudar and others v. State of Karnataka3, para 61). As such, motive of the offence is not established. 2 1960 SCC OnLine SC 8 : AIR 1960 SC 1125 3 (2024) 8 SCC 149 (Cr.A.No.501/2017) 18. The next circumstance relates to memorandum statement of the accused/appellant recorded vide Ex.P-13 and subsequent seizure of one iron patasi from him vide Ex.P-14 on which blood was found, as culled out in sub-paras 3 to 6 of paragraph 40 of the judgment impugned passed by the trial Court. 19.The appellant used to work as carpenter and a sharp-edged iron patasi was seized from him on which blood was found. The trial Court has held that injury could have been caused by the weapon of offence patasi seized from the appellant. However, witnesses to the memorandum statement (Ex.P-13) and subsequent seizure (Ex.P-14) namely, Tirath Ram Sahu (PW-12) & Domar Sahu (PW-20), both, have turned hostile and they have not supported the case of the prosecution, except their signatures on Exs.P-13 & P-14, nothing has been proved. Thus, memorandum statement of the accused and recovery of sharp-edged weapon patasi on which blood has been found, have not been proved. Moreover, only blood has been found on the weapon of offence, human blood has not been found in the FSL report. Mere recovery of the weapon of offence would not be sufficient unless it is established that the said weapon of offence has been used in the commission of offence. Therefore, this circumstance is of no use to the prosecution 20.Lastly, the trial Court has held that the injuries found on the body of the accused have been caused by the weapon of offence which have been self-inflicted by the appellant himself. However, except guess (Cr.A.No.501/2017) work by the trial Court, there is no evidence on record that the injuries have been caused by the appellant himself. 21. The Supreme Court in the matter of Rajender Singh and others v. State of Bihar4 held that when injuries sustained by accused are grievous, non-explanation of the same would render the prosecution case suspicious, and observed as under: - “4. So far as the question whether non-explanation of the injuries on accused Rajender ipso facto can be held to be fatal to the prosecution case, it is too well settled that ordinarily the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in the course of the occurrence, if the injuries are minor in nature, but at the same time if the prosecution fails to explain a grievous injury on one of the accused persons which is established to have been caused in the course of the same occurrence then certainly the court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident. In the case in hand accused-appellant Rajender had one penetrating wound, three incised wounds and one lacerated wound and of these injuries, the penetrating wound on the left axillary area in the 5th intercostal space ½” x ⅓” x ¾” was grievous in nature as per the evidence of the doctor, PW-3 who had examined him. On the basis of the evidence of PW-3 as well as PW-11 the courts have come to the conclusion that there is no room for doubt that the appellants and their men had injuries on their person on the date of the occurrence. The question, therefore, that remains to be considered is whether non-explanation of the said injuries on accused- appellant Rajender can form the basis of a conclusion that the prosecution version is untrue. In Mohar Rai and Bharath Rai v. State of Bihar (AIR 1968 SC 1281) this Court had held that the failure of the prosecution to offer any explanation regarding the injuries found on the accused shows that the evidence of the prosecution witness relating to the incident is not true or at any rate, not wholly true and further, those injuries probabilise the plea taken by the accused persons. But in Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394, this Court considered Mohar Rai (supra) and came to hold that non-explanation of the injuries on the accused by the prosecution may affect the 4 (2000) 4 SCC 298 (Cr.A.No.501/2017) prosecution case and such non-explanation may assume greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution. The question was considered by a three-Judge Bench of this Court in the case of Vijayee Singh v. State of U.P., (1990) 3 SCC 190, and this Court held that if the prosecution evidence is clear, cogent and creditworthy and the court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence and consequently the whole case and much depends on the facts and circumstances of each case. In Vijayee Singh case (supra) the Court held that non-explanation of injury on the accused person does not affect the prosecution case as a whole.” 22. In the instant case, as per the injury report of the accused/appellant Ex.P-30 proved by (Smt.) A. Dutt (PW-23), injuries No.1 & 2 were grievous which the prosecution has miserably failed to establish except projecting that the same were self-inflicted which makes the prosecution case doubtful. Thus, it is held that the prosecution has suppressed the material facts and thereby genesis and origin of the case was not presented. Therefore, the appellant is entitled for acquittal on the basis of benefit of doubt. 23. 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 28-2-2017. The appellant is acquitted of the charges under Sections 302 & 201 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. 24. The appeal stands allowed. Page 13 of 13 (Cr.A.No.501/2017) 25. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Soma