1 2025:CGHC:40417-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 389 of 2025 Pusnath S/o Jangu Bargah Aged About 45 Years R/o Village- Neelkanthpur, Police Station- Kusmi, District- Balrampur-Ramanujganj (C.G.) ... Appellant versus State Of Chhattisgarh Through The Station House Officer, Police Station Kusmi, District-Balrampur-Ramanujganj (C.G.) ... Respondent For Appellant : Mr.Manoj Chauhan, Advocate For Respondent : Mr.S.S.Baghel, Deputy Government Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha , Chief Justice 12/08/2025 1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 04.12.2024 passed by the Second Additional Sessions Judge, Ramanujganj in Sessions Case No.86/2019, by which the appellant herein has been convicted for offence under BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.08.12 18:01:34 +0530 2 Section 302 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.1000/-, in default of payment of fine, to further undergo RI for three months. 2. Case of the prosecution, in brief, is that Deputy Sarpanch of village Neelkanthpur Deepak Kumar Bunkar (PW-1) had lodged a complaint in Police Station Kusmi that on 30.05.2019, when he went towards his village, he saw that there was a crowd near Pushnath's house. Seeing the crowd, Pushnath's second wife's son Lavangsai told that on 29.05.2019 at about 12:00 noon, his father had killed Budhni Bai with axe. Budhni Bai died while being taken to Ambikapur hospital. On receiving this information, when Deepak Kumar Bunkar reached near Pushnath's house, he saw that there was a crowd near Pushnath's house, he went inside the house and saw that Budhni Bai was lying dead. When Deepak Kumar saw this and asked Pushnath, he told that he had killed Budhni Bai due to suspicion about her character. On the report of the informant, merg intimation (Ex.P-1) was registered. On the basis of written application of Deepak Kumar Bunkar (Ex.P-2), First Information Report (Ex.P-5) was registered. Inquest was prepared over the body of the deceased vide Ex.P-4. Spot map was prepared by the investigating officer vide Ex.P-6. Bloodstained soil and plain soil were recovered from the spot vide Ex.P-7. Memorandum statement of the appellant was recorded vide Ex.P-8 and on the basis of memorandum statement, axe stains with blood was seized from the appellant vide Ex.P-9. The 3 appellant was arrested on 30.05.2019 vide Ex.P-10. Patwari also prepared the spot map vide Ex.P-15. Dead body of deceased Budhni Bai was sent for postmortem to the Community Health Center, Kusmi, where Dr.T.Sai (PW-9) conducted postmortem over the body of the deceased vide Ex.P-18 and found following injuries:- “1. Lacerated injury was present on left side of head. Its size was 8x3 cm from skin to bone depth. 2. Lacerated injury 3 cm below injury No.1 which was 7x3 cm deep from skin to bone. 3. Torn injury was present on left side of head measuring 4x3 cm. It was deep. All the above injuries were irregular and bluish grey in colour. 4. A bruise measuring 6x4 cm was found on the right chick. It was irregular and bluish grey in colour.” The doctor has opined that cause of death was coma & external & internal heamorrhage due to head injury. Mode of death was homicidal. Axe was also examined by the same doctor vide Ex.P- 19. Clothes of the deceased were seized vide Ex.P-21. Seized articles were sent to FSL for chemical examination and as per FSL report (Ex.C-1), human blood was found on soil (Article B) seized from the spot, axe (Article C) seized from the appellant and blouse (Article F) seized from the deceased. 3. After completion of investigation, charge-sheet was filed before the Judicial Magistrate First Class, Rajpur, who in turn, committed 4 the case to the Court of Second Additional Sessions Judge, Ramanujganj for trial. The accused/appellant abjured the guilt and entered into defence. 4. In order to bring home the offence, the prosecution examined as many as 14 witnesses and exhibited 25 documents Exs.P-1 to P-25. Statement of the accused/appellant was recorded under Section 313 of the CrPC in which he denied guilt. However, the appellant-accused examined none in his defence nor any document has been exhibited. 5. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 04.12.2024, convicted the appellant for offence under Section 302 of the IPC and sentenced as mentioned in opening paragraph of this judgment, against which, this criminal appeal has been preferred by the appellant herein. 6. Learned counsel for the appellant submits that the appellant is innocent and he has been falsely implicated in crime in question. He further submits that learned trial Court grossly erred in convicting the appellant particularly when the prosecution has failed to prove its case beyond reasonable doubt. He also submits that there are material contradictions and omissions in the statements of memorandum and seizure witnesses. Hence, the criminal appeal deserves to be allowed and the judgment impugned deserves to be set aside. 5 7. On the other hand, learned Deputy Government Advocate appearing for the respondent/State supports the impugned judgment and submits that deceased Budhni Bai died in the house where the appellant and the deceased were present, therefore, the provision contained in Section 106 of the Evidence Act is applicable and the appellant was required to explain as to under what circumstances Budhni Bai died in his house. He further submits that appellant has failed to explain the death of the deceased and therefore, conviction of the appellant for offence under Section 302 of the IPC is well merited and the appeal deserves to be dismissed. 8. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection. 9. The question for consideration is whether the appellant is the author of the crime, which the trial Court has answered in affirmative relying upon the circumstantial evidence available on record. The trial Court has convicted the appellant with the aid of Section 106 of the Evidence Act holding that it is house murder, which the appellant was required to offer explanation in his statement under Section 313 of the CrPC, which he has failed to offer and consequently, finding other circumstance established, proceeded to convict him for offence under Section 302 of the IPC. 6 10. Section 106 of the Indian Evidence Act, 1872, 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.” 11. The law regarding under Section 106 of the Indian Evidence Act, 1872 is well settled. The unnatural death of Kailashkunwar took place in the house of the appellant. 12. As per the requirement of Section 106 of the Indian Evidence Act, the accused was required to give plausible and convincing explanation about the circumstances, in which, the deceased was found dead in their house. Where an offence like murder is committed inside the 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. The burden would be of a comparatively lighter character. 13. In view of Section 106 of the Indian Evidence Act, 1872, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how crime was committed. The inmates of the house cannot keep away by simply keeping quite 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 the accused to offer any explanation. 14. In the matter of Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681 the Supreme Court whilst applying 7 provisions of Section 106 of the Indian Evidence Act, observed in para 14 reads 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. 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 traveling on a railway without ticket. The burden of proving that he had a ticket is on him." 15. On the interpretation of Section 106 of the Indian Evidence Act, 1872 in the matter of Shambhu Nath Mehra v. State of Ajmer reported in AIR 1956 SC 404 in paragraph 9 it was observed by the Supreme Court thus: 8 "9. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not." 16. In the matter of State of West Bengal v. Mir Mohammad Omar and others reported in (2000) 8 SCC 382, the Supreme Court Court has observed in paras 31 to 33 as under: “31. The prestine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty. 32. In this case, when the prosecution succeeded in establishing the afore narrated circumstances, the Court has to presume the existence of certain facts. Presumption 9 is a course recognized by the law for the court to rely on in conditions such as this. 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.” 17. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval in the matter of Nagendra Sah v. State of Bihar reported in (2021) 10 SCC 725 in which it has been held by their Lordships of the Supreme Court as under: “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. 23. When a case is resting on circumstantial evidence, if the accused fails to offer a 10 reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.” 18. Deputy Sarpanch Deepak Kumar Bunkar (PW-1) has stated in his evidence that at the time of incident, he was Deputy Sarpanch of Gram Panchayat Nilkanthpur. Then the Police Station In-charge Kusmi called him and said that an incident has happened in the village, come to the police station. When he reached Kusmi Police Station, the Police Station In-charge made him sign four to five documents regarding the death. Apart from this, he do not have any further information regarding the incident. In para 2 of his evidence, he has stated that the police did not record the information of untimely and sudden death in front of him. When the information of untimely and sudden death was shown to him, he admit to having signed the said part. He did not give a written application to the police. When the written application was shown to him, he admit to having signed the said part. 19. Thirra (PW-2) (mother of the deceased) has stated in para 2 of her evidence that the incident happened last year. The appellant and the deceased are husband and wife. Both lived together. The police interrogated her. She told the police that the appellant 11 called her and said that he had killed her daughter. On receiving the information, she went and saw that her daughter was lying dead. When she looked, there were injury marks on the top of the deceased’s head and on the right side of her face. 20. It is to be remembered here that homicidal nature of death need not always be proved through direct evidence. It has to be inferred from the circumstances and the nature of injuries noticed on the dead body. The instant case is about the death of a wife committed by the husband within four walls of the house. When the assailant is the husband, it is difficult indeed to get direct evidence for commission of the crime. It is thus concluded that the deceased died homicidal nature of death. 21. In the present case, the deceased was found dead in her house and at that time, only the appellant and the deceased were present in the house and as per the provision of Section 106 of the Evidence Act, the burden to prove that the appellant was not present in the house at the time of incident and he was present elsewhere is on the appellant, which he admittedly failed to prove in his statement under Section 313 of the CrPC. 22. Considering the evidence of Dr.T.Sai (PW-9) and his postmortem report (Ex.P-18), taking into consideration that the burden of proving a plea specially set up by the appellant which may absolve him from criminal liability, certainly lies upon him and he has not offered any plausible explanation, further taking into 12 consideration that the appellant was required to explain as to how the deceased suffered such injuries, as the dead body of the deceased was found lying inside the house of the appellant, which he has admittedly not explained in his statement under Section 313 of the CrPC and the material collected by the prosecution, we are of the considered opinion that the above chain of circumstances is complete and leads only to one conclusion that it was the accused/appellant who caused death of the deceased. The view taken by learned trial Court that the appellant is the author of the crime is a pure finding of fact based on evidence available on record. We hereby affirm that finding. 23. In the result, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. The conviction and sentence as awarded by the trial court to the appellant is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed. 24. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 25. The Registry is directed to transmit the certified copy of this judgment along with the record to the trial Court concerned for necessary information and compliance. 26. Registry is also directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is 13 undergoing his jail term, to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Bablu