1 2026:CGHC:911-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1354 of 2019 Rupnarayan @ Banno Kodaku S/o Sonsai Kodaku Aged About 40 Years R/o Village Baghwartola, Budhdudih, Police Station Balrampur, District Balrampur Ramanujganj, Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through The Station House Officer, Police Station Balrampur, District Balrampur Ramanujganj Chhattisgarh. ... Respondent For Appellant : Mr. Tarun Dansena, Advocate For Respondent/State : Dr. Surendra Dewangan, P.L. (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (07.01.2026) Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of Cr.P.C. has been preferred against the judgment of conviction and order BHOLA NATH KHATAI Digitally signed by BHOLA NATH KHATAI Date: 2026.01.08 14:18:16 +0530 2 of sentence dated 17.07.2019, passed by learned Additional Sessions Judge, Ramanujganj, District Balrampur- Ramanujganj (C.G.) in Sessions Trial No.84/2017, whereby the appellant herein has been convicted for offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo Life Imprisonment with fine of ₹500/- and in default of payment of fine, to suffer three months additional rigorous imprisonment. 2. The case of prosecution, in short, is that on 04.10.2017 at about 7:00 p.m., in village Bachhwar Tola, Budhudih, Police Station – Balrampur, District Balrampur- Ramanujganj, the appellant herein assaulted his wife Sukhmaniya (deceased) by axe and bamboo stick, due to which she suffered grievous injuries and died, thereby the offence has been committed. Information in this regard was given by the father of appellant to Police Station – Balrampur, pursuant to which, Dehati Nalsi was recorded vide Ex.P-12. Merg Intimation was recorded vide Ex. P-14 and FIR was registered vide Ex.P-17. Inquest was conducted vide Ex.P-2 and dead body of the deceased was subjected to post-mortem, which was conducted by Dr. Rajiv Tiwari (PW- 5). According to the post-mortem report Ex. P-8, cause of death was hemorrhagic shock due to head injury of vital organ brain and death was homicidal in nature. Pursuant to the memorandum statement of appellant (Ex. P-4), one axe and one bamboo stick were seized vide Ex. P-5 which were sent for chemical examination to FSL along with other seized articles. As per FSL report Ex. P-24, human blood was found on the said axe and bamboo stick. After due investigation, appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately 3 committed to the Court of Sessions for hearing and disposal in accordance with law. 3. During the course of trial, in order to bring home the offence, prosecution examined as many as 8 witnesses and exhibited 24 documents. The appellant-accused in support of his defence has neither examined any witness nor exhibited any document. The statement of appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 4. Learned trial Court, after appreciation of oral and documentary evidence on record, convicted and sentenced the appellant herein as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred by the appellant questioning the legality, validity and correctness of the impugned judgment. 5. Mr. Tarun Dansena, learned counsel for the appellant, would submit that there is no direct evidence against the appellant, and his conviction under Section 302 of the IPC is based solely on the assumption that he committed the murder of his wife. He would submit that although the FSL report (Ex. P-24) confirmed the presence of human blood on the axe and bamboo stick seized pursuant to the memorandum statement of appellant, it has not been proved that the said weapons were used in the commission of offence. He would further submit that the prosecution has not been able to prove its case beyond reasonable doubt and therefore, the appellant is entitled for acquittal on the basis of benefit of doubt. 4 6. Dr. Surendra Dewangan, 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 offence under Section 302 of I.P.C. As such, the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 8. The first and foremost question for consideration is whether the death of deceased Sukhmaniya was homicidal in nature? 9. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex. P-8 proved by Dr. Rajiv Tiwari (PW-5), according to which, cause of death was hemorrhagic shock due to head injury of vital organ brain and death was homicidal in nature, which is a finding of fact based on evidence available on record and is neither perverse nor contrary to the record and we hereby affirm the said finding. 10. The case of prosecution is not based on any direct evidence. It is based solely on circumstantial evidence. The Trial Court proceeded to convict the appellant applying Section 106 of the Evidence Act. 11. Now, the question for consideration is as to whether Section 106 of the Indian Evidence Act would be applicable or not? 12. At this stage, it would be appropriate to quote Section 106 of the Indian Evidence Act, 1872, which states as under :- “106. Burden of proving fact especially within knowledge.--- When any fact is especially within 5 the knowledge of any person, the burden of proving that fact is upon him.” 13. This provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 of the Evidence Act, which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned. 14. In the matter of Shambhu Nath Mehra v. The State of Ajmer1, their Lordships of the Supreme Court have held that the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act 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 1 AIR 1956 SC 404 6 accused and which he could prove without difficulty or inconvenience. The Supreme Court while considering the word “especially” employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J., observed as under :- “11. …... The word “especially” stresses that it means facts that are preeminently 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. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 At P. 49 (B).” 15. Their Lordships further held that Section 106 of the Evidence Act cannot be used to undermine the well established rule of 7 law that save in a very exceptional class of case, the burden is on the prosecution and never shifts. 16. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab3, while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. 17. The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar4 and it has been held that 3 AIR 1956 SC 460 4 AIR 1974 SC 778 8 burden of proving the case against the accused was on the prosecution irrespective of whether or nor the accused has made out a specific defence. 18. Coming to the facts of the present case in the light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, what requires consideration is whether the prosecution has been able to discharge the primary burden of proving its case beyond reasonable doubt. In the instant case, the prosecution has only been able to establish that the death of deceased Sukhmaniya was homicidal in nature. Apart from that, nothing has been proved except that the dead body was found in the house where appellant and deceased used to live together. However, the appellant’s father Sonsai examined as PW-1 has stated that he resided separately from his son (appellant) and daughter-in-law (deceased) in the same locality. He admits that his son would often leave the house for a week or two in search of livelihood and, upon finding work, would not return home for months. He further admits to seeing the appellant at the Police Station and confirms that he had not seen him in the village for a week prior to the incident. He also admits that the appellant went to the Police Station to inquire about how his wife died when he was arrested. As such, it is not established beyond reasonable doubt that the appellant was in the house along with his wife (deceased) on the date and 9 time of the commission of offence. Therefore, in the light of the principles of law laid down by the Hon’ble Supreme Court in the aforementioned judgments, the provisions of section 106 of the Evidence Act would not be applicable in the facts of the present case. Hence, the trial Court is absolutely unjustified in invoking Section 106 of Evidence Act for convicting the appellant under Section 302 of IPC. 19. The next circumstance found proved by the Trial Court is the recovery of an axe and a bamboo stick, which were seized pursuant to the memorandum statement of the appellant (Ex. P-5). 20. Though the recovery of axe and bamboo stick pursuant to the memorandum statement of the appellant has been proved, but there is no evidence on record to hold that the said axe and bamboo stick were used by the appellant in commission of the offence. Mere recovery of stick pursuant to the memorandum statement of the appellant cannot lead to the conclusion that the appellant has committed the said offence. Even otherwise, as per the principle of law laid down in the case of Mustkeem alias Sirajudeen v. State of Rajasthan1, which has been followed in the matter of Raja Naykar v. State of Chhattisgarh2, the finding of human blood stain on the seized articles is one of the circumstances, on the sole basis of which, the accused cannot be convicted for the offence under Section 302 of IPC. 21. In that view of the matter, we are unable to sustain the conviction of appellant for the aforesaid offence. Accordingly, 1 (2011) 11 SCC 724 2 (2024) SCC Online SC 67 10 the impugned judgment convicting and sentencing the appellant for offence under Section 302 of IPC is hereby set aside/quashed on the basis of benefit of doubt and the appellant is acquitted of the said charge. The appellant is on bail. He need not surrender in this case. However, his bail bond shall remain in force for a period of six months in view of the provisions contained in Section 437A of the CrPC. 22. This criminal appeal, accordingly, stands allowed. 23. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned trial Court for necessary information & action, if any. S Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Khatai Judge Judge