JUDGMENT : RAJANI DUBEY, J. 1. Challenge in this appeal is to the legality and validity of the judgment of conviction and order of sentence dated 26.9.2019 passed by the 5 th Additional Sessions Judge, Distt. Raigarh in ST No.81/2018 whereby accused/appellant stands convicted & sentenced as under: Conviction Sentence Under Section 302 of Indian Penal Code Imprisonment for life, pay a fine of Rs.1000/- and in default thereof to suffer additional RI for one month. Under Section 201 of Indian Penal Code RI for seven years, pay a fine of Rs.1000/- and in default thereof to suffer additional RI for one month. Both the sentences were directed to run concurrently. 2. Case of the prosecution, in brief, is that on 16.5.2018 Smt. Ramkumari Sarthi lodged a report at Police Station – Kotraroad to the effect that on 15.5.2018 at around 7-8 pm they all had their dinner and thereafter the complainant along with her husband went towards the kitchen garden (Badi) for sleeping and the accused/appellant and her son deceased Dilip Kumar Sarthi went towards the courtyard for sleeping. Both the accused/appellant and the deceased started quarreling at night. At around 4 am she heard the sound of someone pushing the door, so she went to the courtyard and saw that both the accused and the deceased were not on their bed and smoke was emanating from their room. When she went towards that room, she saw that there was fire and the accused/appellant told her that she killed her son and set him on fire. When the complainant went into the room, the deceased had died and burnt. On this report, the crime was registered and after due investigation charge sheet under Sections 302 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 her guilt and prayed for trial. 3. In order to substantiate its case the prosecution examined 15 witnesses in all. Statement of the accused was recorded under Section 313 of CrPC wherein she denied all the incriminating circumstances appearing against her in the prosecution case, pleaded innocence and false implication. However, no witness was examined by her in defence. 4. 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. However, no witness was examined by her in defence. 4. 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. 5. Learned counsel for the appellant would submit that the impugned judgment is per se illegal and contrary to the material available on record. There are material contradiction and omission in the statements of the prosecution witnesses. The entire case rests upon circumstantial evidence but the prosecution has failed to prove the complete chain of circumstantial evidence as required under the law. The evidence of PW-3 Purnima Yadav is not at all reliable. The appellant has been convicted only on the basis of suspicion and there is no motive proved by the prosecution against the appellant for commission of this heinous offence. Even the memorandum and seizure have also not been proved in accordance with law. The material witnesses of the prosecution are interested ones, so their evidence ought to have been scrutinized with great care and caution but that has not been done by learned trial Court. Thus, the prosecution has failed to prove its case as against the appellant beyond all reasonable doubt and therefore, she deserves to be acquitted of all the charges. Reliance has been placed on the decisions in the matters of Lavghanbhai Devjibhai Vasava Vs. State of Gujarat , (2018) 4 SCC 329; Anees Vs. State Govt. of NCT , 2024 SCC OnLine SC 757; judgment dated 07 th April, 2025 in the matter of Jagdish Gond Vs. State of C.G. and others in CRA No. 2605/2024 judgment dated 17.8.2022 of this Court in CRA No. 457/2014 in the case of Anant Dutta Vs. State of C.G. and the judgment dated 4.3.2024 in CRA No. 995/2017 in Amrit Jangade Vs. State of C.G. 6. 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 which calls for no interference by this Court. The present appeal being without any substance is liable to be dismissed. 7. Heard learned counsel for the parties and perused the material available on record. 8. The present appeal being without any substance is liable to be dismissed. 7. Heard learned counsel for the parties and perused the material available on record. 8. It is clear from the record of learned trial Court that the appellant was charged under Sections 302 and 201 of IPC for committing murder of her husband Dilip Kumar and causing disappearance of evidence of the crime. After appreciation of oral and documentary evidence, learned trial Court convicted and sentenced her under these sections as mentioned in para 1 of this judgment. 9. The first question to be decided by this Court is whether death of Dilip Kumar was homicidal in nature and secondly, whether it is the appellant who is the author of the crime? 10. PW-1 Ramkumar Sarthi, mother of the deceased, states that the deceased was her son and accused Janki Sidar was her daughter-in- law. On the date of incident at about 9 pm the accused was quarreling with the deceased and then she persuaded both of them, however, the accused told that if she (PW-1) interfered too much, she would beat her son in front of her. Thereafter, she (PW-1) pacified the dispute and went towards kitchen garden to sleep with her husband. At around 4 am having heard the sound of door, she went towards the room and saw that her son Dilip and the accused Janki Sidar were not there in the courtyard. Then she called out both of them and saw that door of the room was half open, though she tried to open the door but failed. When she opened the door with the help of a stick, she found that there was fire and smoke emanating from the room. At that time, the accused pushed her down and told that she has killed Dilip and burnt him and started running away from there. She admits her signature from A to A part on Dehati Merg (Ex.P/1), Dehati Nalishi (Ex.P/2) as also on the spot maps (Ex.P/3, P/4 & P/5). 11. PW-2 Amrit Das, PW-3 Smt. Purnima Yadav, PW-4 Jeevanlal Sarthi (father of deceased), PW-5 Gulab Sarthi and PW-6 Gangaram, all have stated that they saw fire in the house of the deceased, smoke was emanating from his room, he was burning and his mother PW-1 Ramkumari Sarthi informed that it is the accused/appellant who burnt him to death. 12. 11. PW-2 Amrit Das, PW-3 Smt. Purnima Yadav, PW-4 Jeevanlal Sarthi (father of deceased), PW-5 Gulab Sarthi and PW-6 Gangaram, all have stated that they saw fire in the house of the deceased, smoke was emanating from his room, he was burning and his mother PW-1 Ramkumari Sarthi informed that it is the accused/appellant who burnt him to death. 12. PW-7 Shaukilal Chouhan admits his signature on the inquest notice and states that in his presence the inquest was performed on the body of the deceased. He admitted his signature on the inquest notice and inquest memo (Ex.P/30) from A to A part. PW-11 DP Bhardwaj, ASI, states that he recorded Dehati Merg (Ex.P/1) and Dehati Nalishi (Ex.P/2) as per statement of Smt. Ramkumari Sarthi and also issued notice for performing inquest to the witnesses vide Ex.P/31 and then prepared inquest memo (Ex.P/30) and gave application for postmortem Ex.P/18. 13. PW-15 Dr. Rajesh Ban Goswami conducted postmortem on the body of the deceased vide Ex.P/19 and found following injuries/symptoms on external examination : “ Externals Received dead body in completely charred condition (dermo-epidermal to deep burns up to bones deep) except over part of right leg below knee, whole body was in cooked stage and blackish in appearance with burnt ashes present over the body except over right leg below knee, face completely charred, disfigured and not identifiable, both eyes closed, mouth open, teeth visible, present inside mouth, partially blackened and intact, tongue visible, present inside mouth and tip partially blackened, rigor mortis present in both upper and lower limbs, upper limbs held out in front of body and flexed at elbow and wrists, fingers of both hands flexed in claw like position, lower limbs flexed at knee and hip, arching of body backwards, eyes, and nostrils filled with blackish carbon particles, dermo- epidermal to deep burns present over lower leg below knee, peeling of skin present at places over lower leg. multiple small blisters present at places over lower leg, no red line of demarcation found over burn area at lower leg, scalp hairs present at places over the occipital region of scalp, scalp, and blackish, axillary and pubic hairs found missing, remnants of burnt clothings found adherent at places over back of lower abdomen and buttock regions on both side, skin over scalp region completely burnt and found missing except over occipital region, skull bone found exposed, a hollow defect of size 20.0×15.0 cm present over antero-lateral part of abdomen on right side, small part of lower part of right liver and part of small and large intestine found exposed out from the defect, fracture of right uina bone, lower part of left humerus bone, left femur bone, left tibia bone and left fibula bone present (heat fractures) and bones exposed out, multiple linear fractures with blackening of temporo-parietal part of skull bone found on right side (heat fracture), heat ruptures (splitting of skin) present at places over the body, scrotum and small part of root of penis present in completely burnt condition and blackened, there were no signs of decomposition.” The doctor noticed 100% burn and opined that the burn injuries were postmortem in nature. However, opinion regarding cause of death was reserved till chemical analysis reports of preserved material is made available. In cross-examination he admits that he has not mentioned in the postmortem report that death was due to strangulation or burn. He also admits that he did not find any ante-mortem injury and that he did not give any definite opinion regarding cause of death of the deceased. 14. Dr. Rajesh Goswami (PW-15) advised for chemical examination of viscera of the deceased and as per FSL report (Ex.P/26), kerosene was found on Articles A, B, C, D & E. As per FSL report (Ex.P/27), no poisonous substance was found in viscera of the deceased. 15. As per PW-1 Ramkumar Sarthi, the accused and the deceased were inside the room and she tried to open the door but failed. PW-4 Jeevanlal Sarthi, father of the deceased, states that his son/deceased and his wife/accused were sleeping in the courtyard and at around 4 am his wife came out weeping and informed that the accused has burnt their son/deceased and fled from the spot. PW-4 Jeevanlal Sarthi, father of the deceased, states that his son/deceased and his wife/accused were sleeping in the courtyard and at around 4 am his wife came out weeping and informed that the accused has burnt their son/deceased and fled from the spot. The police also recorded memorandum of the accused (Ex.P/10) wherein she disclosed about strangulation of the deceased and stated that when he fell unconscious she set him on fire by pouring kerosene on him. However, the autopsy surgeon (PW-15) admits the suggestion of defence that he did not mention in the postmortem report regarding death of the deceased due to strangulation or burning. He also admits that there were no ante-mortem injuries over the dead body. However, it is proved from the statement of PW-1 that both the accused and the deceased were quarreling in the room on the previous night and when she opened the door, there was fire in the room, smoke was coming out, the accused fled from there having pushed her. Thus, it is clear that the accused was with the deceased at the time of incident and when PW-1 saw her and Dilip, by that time Dilip had died. She remained firm in her cross-examination. The other witnesses also supported the statement of PW-1 that she informed them that it is accused Janki Sidar who killed Dilip and also burnt him. On the memorandum of the accused (Ex.P/10), one burnt saree was seized vide seizure memo (Ex.P/14) but it is clear from the report of the autopsy surgeon that burn injuries were postmortem in nature, meaning thereby the deceased had died before being burnt. In her statement u/s 313 of CrPC, the accused/appellant has not explained as to how her husband died and rather she states that there was fire due to short-circuit and therefore, she ran away from there. However, as per police investigation and FSL report, the deceased was set on fire by pouring kerosene. 16. PW-9 Sukhlal Patel is the witness to memorandum (Ex.P/10) and seizure Ex.P/14. Though in the examination-in-chief he did not support the prosecution case, however, after being declared hostile when the prosecution cross-examined him he admitted that the accused gave memorandum of Ex.P/10 before him. PW-10 Mehar Lal Pradhan is a witness to seizure (Ex.P/11) and did not support the prosecution case at all. However, these witnesses admit their signatures on these documents. Though in the examination-in-chief he did not support the prosecution case, however, after being declared hostile when the prosecution cross-examined him he admitted that the accused gave memorandum of Ex.P/10 before him. PW-10 Mehar Lal Pradhan is a witness to seizure (Ex.P/11) and did not support the prosecution case at all. However, these witnesses admit their signatures on these documents. As per seizure memo Ex.P/11, burnt saree, burnt quilt, 5 liter jerrycan of kerosene and one matchbox were seized from the spot. PW-11 DP Bhardwaj, investigating officer, states that he seized burnt saree, shirt and plastic jerrycan, matchbox as per seizure memo Ex.P/11. As per FSL report (Ex.P/26), kerosene was found on Article A – kerosene jerrycan, Article B – half burnt saree, Article C – half burnt quilt and shirt, Article D – half burnt hair and underwear of the deceased and Article E – half burnt saree seized from the accused. 17. In Trimukh Maroti Kirkan v. State of Maharashtra , (2006) 10 SCC 681 , the Hon’ble Supreme Court was considering a similar case of homicidal death in the confines of the house. The following observations made therein are considered relevant in the facts of the present case: “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] ?.C. 315: [1944] 2 All ER 13 (HL)] quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh ( (2003) 11 SCC 271 : 2004 SCC (Cri) 135].) 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 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 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 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 an accused to offer any explanation. xxx xxx xxx 22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.” 18. In the present case, it stands proved from the evidence on record that the deceased was found burning in a closed room and as per unrebutted evidence of PW-1 Ramkumari Sarthi, soon before the incident there was hot talk between the accused and the deceased which she tried to pacify and next morning having heard some sound when she went towards that room and was peeping into it, the accused/appellant pushed her down and told that she has killed her son Dilip and burnt him, and then started running away from there. As per postmortem report which has been duly proved by the autopsy surgeon PW-15 Dr. Rajesh Ban Goswami, the burn injuries were postmortem in nature. In her statement u/s 313 of CrPC the accused offered explanation that as there was fire due to short-circuit, out of fear she ran away from the spot. However, this explanation stands falsified from the FSL report according to which kerosene was found on the seized articles i.e. half burnt saree, half burnt quilt and shirt, half burnt hair and underwear of the deceased and half burnt saree seized from the accused. This false explanation serves as an additional link in the chain of circumstantial evidence and therefore, looking to the facts and circumstances of the case, the manner in which the incident took place, the evidence of PW-1 Ramkumar Sarthi, the autopsy surgeon (PW-15) and other witnesses coupled with the scientific evidence in the form of FSL reports and conduct of the accused/appellant during the course of incident and subsequent thereto, it stands proved beyond reasonable doubt that death of Dilip Kumar was homicidal in nature and it is the accused/appellant who caused his death and in order to cause disappearance of evidence of the crime, burnt the dead body. Learned trial Court also minutely appreciated the oral and documentary evidence and rightly held the death of Dilip Kumar homicidal in nature and the appellant as author of the crime. 19. Now this Court has to see whether the act of the appellant makes her liable for conviction under Section 302 of IPC or any lesser offence. 20. In the matter of Lavghanbhai Devjibhai Vasava (supra) the Hon'ble Supreme Court has referred to its earlier decision in the matter of Dhirendra Kumar Vs. 19. Now this Court has to see whether the act of the appellant makes her liable for conviction under Section 302 of IPC or any lesser offence. 20. In the matter of Lavghanbhai Devjibhai Vasava (supra) the Hon'ble Supreme Court has referred to its earlier decision in the matter of Dhirendra Kumar Vs. State of Uttarakhand , 2015 SC OnLine SC 163, to delineate the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 or under Section 304 of IPC. The said parameters are reproduced hereunder :- “(a) The circumstances in which the incident took place; (b) The nature of weapon used; (c) Whether the weapon was carried or was taken from the spot; (d) Whether the assault was aimed on vital part of body; (e) The amount of the force used; (f) Whether the deceased participated in the sudden fight; (g) Whether there was any previous enmity; (h) Whether there was any sudden provocation; (i) Whether the attack was in the heat of passion; and (j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.” 21. In the matter of Kala Singh @ Gurnam Singh Vs. State of Punjab , (2021) 10 SCC 744 , there was a sudden fight between the appellant Kala Singh and the deceased as the deceased had stolen a pigeon of the appellant and the co-accused (Kehar Singh) hit the deceased with a rod on the head resulting in his death. Co-accused was convicted under Section 302 and 201 of IPC whereas appellant was convicted under Section 302/34 and 201 of IPC and sentenced to life imprisonment and RI for three years respectively. In appeal, High Court having found that the scuffle had taken place on the spur of moment in a sudden fight in the heat of passion upon a sudden quarrel and as such, not a premeditated act, modified the conviction from 302 to 304 Part-I of IPC and imposed of 12 years’ RI and fine of Rs.10,000/- with default sentence of six months. The Hon’ble Supreme Court held that it was not a premeditated one and as there was no intention on the part of the appellant and co- accused either to cause death or cause such bodily injury as is likely to cause death, as such the High Court ought not to have convicted the appellant for the offence under Section 304 Part-I of the IPC and modifying the same into Section 304 Part-II of IPC, reduced the sentence from 12 years to 07 years’ RI while maintaining the fine sentence imposed by the High Court. 22. This Court in the matter of Raijuram Kaudo Vs. State of C.G. CRA No. 1328/2015 , judgment dated 24 th August 2023, where the appellant who was unhappy with the conduct of his wife as she used to steal Mahuwa from the houses of villagers for which he was feeling underestimated and humiliated, caused her death by strangulation in a sudden fight without premeditation, altered his conviction u/s 302 of IPC to 304 Part-II of IPC and looking to his period of detention i.e. more than 09 years, sentenced him to the said period. 23. In the case in hand, in her memorandum (Ex.P/10) she disclosed that on the fateful night, there was quarrel between the accused and the deceased as he was giving more preference to his first wife; at about 2 am the deceased forced her to sleep with him in the room but she refused, then the deceased forcibly took her into the room and there also he started quarreling with her, so out of anger she pressed his neck, he fell down the bed and became unconscious. Thereafter, she poured kerosene on him and set him on fire. PW-9 Sukhlal Patel, witness to the memorandum and seizure (Ex.P/14) and PW-14 Amit Patel, SI, who recorded her memorandum and effected seizure, have duly supported the prosecution case. 24. It is clear from the statement of PW-1 Ramkumari Sarthi that in the last night, the accused and the deceased were quarreling with each other, the incident occurred all of a sudden, in the heat of passion upon a sudden quarrel without there being any premeditation on her part. 24. It is clear from the statement of PW-1 Ramkumari Sarthi that in the last night, the accused and the deceased were quarreling with each other, the incident occurred all of a sudden, in the heat of passion upon a sudden quarrel without there being any premeditation on her part. As per postmortem report no ante-mortem fatal injury was found on the body of the deceased, the burn injuries were post-mortem in nature, there is no weapon of offence seized from the accused and as per FSL report, no poisonous substance was found in the viscera of the deceased. The act of the accused/appellant thus amounts to culpable homicide not amounting to murder. Though in the given facts and circumstances of the case and the manner in which the incident took place, it is difficult to hold that the accused/appellant caused any such bodily injury to the deceased or committed any such act intentionally which could result in his death, however, it can be held safely that the she had the knowledge that the act being committed by her would result in his death. As such, the accused/appellant has committed culpable homicide not amounting to murder, making her liable for conviction u/s 304 Part-II of IPC. 25. As regards the quantum of sentence, considering the facts and circumstances of the case, the fact that the appellant is a woman of around 32 years and she has been in jail since 17.5.2018, this Court is of the opinion that the ends of justice would be served if she is sentenced under Section 304 Part-II of IPC to undergo RI for eight years and is directed to pay a fine of Rs.500/- with default sentence of one month. 26. In the result, the appeal is allowed in part. While maintaining conviction and sentence of the appellant u/s 201 of IPC, her conviction under Section 302 of IPC is altered to one u/s 304 Part-II of IPC and she is sentenced to undergo RI for eight years and pay a fine of Rs.500/-, in default thereof to suffer additional RI for one month. The fine amount already deposited shall be adjusted accordingly. Both the sentences shall run concurrently. The appellant shall be entitled for set off of the period already undergone under Section 468 of BNSS, 2023 (428 of CrPC). The impugned judgment stands modified to the above extent. The fine amount already deposited shall be adjusted accordingly. Both the sentences shall run concurrently. The appellant shall be entitled for set off of the period already undergone under Section 468 of BNSS, 2023 (428 of CrPC). The impugned judgment stands modified to the above extent. A copy of this judgment along with original record be transmitted to the concerned trial Court for information and compliance. A copy of this judgment be also forwarded to the concerned Jail Superintendent where the appellant is undergoing the sentence, for information and necessary action.