Durg, Chhattisgarh v. State Of Chhattisgarh Through Police Station Old Bhilai, District
Case Details
1 BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.02.14 15:54:45 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR 2025:CGHC:7660-DB NAFR CRA No. 300 of 2021 Sahdev Kumar Sahu S/o Srawan Sahu Aged About 34 Years R/o Village- Ghughwa, Police Station Old Bhilai, District- Durg, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station Old Bhilai, District- Durg, Chhattisgarh ... Respondent For Appellant : Mr.Mirza Kaiser Baeg, Advocate For Respondent : Mr.Malay Jain, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindera Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha , Chief Justice 13/02/2025 1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of
Legal Reasoning
sentence dated 29.01.2021 passed by the First Additional Sessions Judge, Durg in Sessions Case No.25/2019, by which the appellant herein has been convicted for offence under Sections 302 and 201 of the IPC and sentenced to undergo imprisonment 2 for life and fine of Rs.1000/-, in default of payment of fine, to further undergo SI for one year and RI for seven years and fine of Rs.1000/-, in default of payment of fine, to further undergo SI for one year. 2. Case of the prosecution, in brief, is that on 08.09.2018, a report was lodged by complainant Khomlal Sahu in the Police Station Purani Bhilai to the effect that his house is adjacent to Shravan Sahu’s house, in which he has opened an agricultural medical shop. In Shravan Sahu’s house, his elder son Sahdev Sahu lives with his wife Vedmati and three years old daughter. Sahdev Sahu used to fight and beat his wife Vedmati often, due to which she went to her father’s house in village Domar about 7-8 months ago with her daughter, whom Sahdev Sahu brought to his house 10-12 days ago. Today on 8.9.2018 at 7 A.M. he was watching TV in his shop, at the same time, his wife Hemlata came and told him that the sound of shouting is coming from Sahdev Sahu’s house, then he said that it must be a dog, then his wife went back. About 10 minutes later at 7.30 A.M., she came again and told him that smoke was coming out to his house. Then his wife and he went towards his house and saw that Sahdev came near his door dragging his daughter and saw that there were bloodstains on his lower, hands and feet. Then he went on his motorcycle and informed his father Shravan Sahu, Sarpanch Lokeshwar and brought both of them near Sahdev Sah’s house by seating them in his motorcycle. When they returned, Sahdev Sahu had washed 3 the blood from his hands and feet. He was trying to run away, but the villagers have caught him. When everyone went inside Sahdev Sahu’s house and looked, he had severely hit his wife Vedmati with a sickle at several places on the back of her head and also hit on the forehead with a sickle and strangulated her. She was lying in a burnt condition and covered in body. After killing deceased Vedmati, the appellant in order to conceal the murder poured kerosene over her body and burnt her so that they think that she committed suicide by pouring kerosene. On the basis of report made by the complainant as above, FIR in Crime No.337/2018 was registered against the appellant for offence under Sections 302 and 201 of the IPC vide Ex.P-9. 3. During the course of investigation, notice was issued to the witnesses. A panchnama was prepared of bed map of the deceased and photographs of the body was taken. Dead body of the deceased was sent to the Government District Hospital, Durg for postmortem, where Dr.M.Nirala (PW-8) conducted postmortem over the body of the deceased vide Ex.P-14 and found following symptoms:- Dead body of a female covered with orange blue colour kathari and pink, purple and orange colour sari. Burnt clothing pieces attached on chest and abdomen. Both eyes closed. Mouth closed. Heat stiffening present on both upper and lower limbs. Tongue 2cm protruded from mouth. Kerosene smell 4 that on decomposition present on all over body except mid parietal region. The doctor has opined that death was due to head injury associated with burn. The clothes worn by the deceased at the time of incident along with pieces of bangles, rosary, burnt stump of bidi, sickle, jerrycan filled with kerosene, wooden plank, bloodstained and plain soil were seized from the spot. The site map was prepared. The appellant was arrested and lower and slippers worn by him at the time of incident which had bloodstains with many places, were seized in front of the witnesses. When the body of the deceased was taken out by the doctor during postmortem, burnt panty and sari were seized and the seized property was sent to the State Forensic Science Laboratory, Raipur for chemical examination. 4. After completion of investigation, charge-sheet was filed before the Judicial Magistrate First Class, Bhilai-3, who in turn, committed the case to the Court of Sessions, Durg, from where the First Additional Sessions Judge, Durg received the case on transfer for trial. The accused/appellant abjured the guilt and entered into defence. 5. In order to bring home the offence, the prosecution examined as many as 10 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 5 appellant-accused examined none in his defence nor any document has been exhibited. 6. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 29.01.2021, convicted the appellant for offence under Sections 302 and 201 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. 7. 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 the case beyond reasonable doubt. The prosecution can not take the advantage of Section 106 of the Indian Evidence Act unless the motive to kill wife is established and proved. He also submits that there are material contradictions and omissions in the statements of the prosecution witnesses. Hence, the criminal appeal deserves to be allowed and the judgment impugned deserves to be set aside. 8. On the other hand, learned Panel Lawyer appearing for the respondent/State supports the impugned judgment and submits that dead body of deceased Vedmati was found lying in the house of the appellant in a burnt condition, therefore, provision of Section 106 of the Evidence Act is applicable and the appellant 6 was required to explain as to under what circumstances Vedmati died in his house and who burnt her. He further submits that appellant has failed to explain the death of the deceased and therefore, conviction of the appellant for offence under Sections 302 and 201 of the IPC is well merited and the appeal deserves to be dismissed. 9. 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. 10. 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 Sections 302 and 201 of the IPC. 11. 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.” 7 12. 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. 13. 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. 14. 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. 15. In the matter of Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681 the Supreme Court whilst applying 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 8 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." 16. 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: "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 9 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." 17. 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 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 10 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.” 18. 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 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 11 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.” 19. Hemlata Sahu (PW-3) has stated in para 1 of her evidence that the incident took place before Teej Pola festival and after Rakhi festival. On the date of incident, she was in her house. At the time of the incident, she was bathing her children in the morning, at that time, she heard a very loud screaming sound but she did not pay attention to it thinking it to be the voice of a dog. After some time, she saw smoke coming out of the house of appellant Sahdev. Then she went to the shop in her house to call her husband Khomlal Sahu and told her husband about the screaming and smoke coming out. The house of appellant Sahdev is next to her house. They were standing in front when accused Sahdev’s daughter Jimmy was telling her father Sahdev to extinguish the fire. In para 2 of her evidence, she has stated that at that time, her husband went to call Lokesh, husband of the Sarpanch of their village and immediately her husband brought Lokesh to the house of appellant Sahdev and Lokesh and Sahdev’s father Shravan went inside the house. At that time, Sahdev came out with his daughter Jimmy and she saw that there was blood on one of his legs. In para 3, she has stated that after some time, Sahdev’s father Shravan came to her house to take 12 sack and he told her that Vedmati had died. Shravan told her that Sahdev had killed Vedmati with sickle and set her on fire. 20. Khomlal Sahu (PW-5) has stated in para 2 of his evidence that on the morning of the incident, his wife came to his shop and said that there was a sound like a dog barking near the street, then he told her to leave saying that it must be the sound of a dog barking. After about 5-7 minutes, his wife Hemlata again came and informed him that smoke was coming out of Sahdev Sahu’s house He immediately went to the courtyard of his house with his wife and saw lot of smoke coming out of the house of appellant Sahdev. As soon as he put the key in the motorcycle outside the house to inform Sahdev’s father, he saw that Sahdev came out of the house with his daughter. He saw that there was blood on Sahdev Sahu’s feet and on the clothes he was wearing. 21. Dr.M.Nirala (PW-8) while answering the question No.1 put to him has stated that the injuries inflicted on forehead of deceased Vedmati Sahu by appellant Sahdev Sahu with iron sickle could have come from the iron handle of sickle and the blunt and front parts of sickle. There are bloodstains on sickle. 22. 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 13 the assailant is the husband, it is difficult indeed to get direct evidence on the nature of injuries. It is thus concluded that the deceased died homicidal nature of death. Considering the answers given by Dr. M. Nirala (PW-8) vide Ex.P-15 to the queries made by the Station House Officer, Police Station Purani Bhilai and further considering the nature of injuries, which the deceased was found, we are of the considered opinion that death of the deceased was homicidal in nature. It is held accordingly. 23. 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. 24. Considering the answers given by Dr. M.Nirala (PW-8) to the queries made by the Station House Officer, Police Station Purani Bhilai, 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 consideration that the appellant was required to explain as to how the deceased suffered such injuries and set here on fire, as the dead body of the deceased was found lying inside the house of the appellant in a burnt condition, which he has admittedly not explained in his 14 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 and set her on fire. 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. 25. 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. 26. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 27. 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. 28. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is 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 15 Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Bablu