Gariyaband Chhattisgarh v. State Of Chhattisgarh Through
Case Details
1 CRA No.561 of 2023 2025:CGHC:47440-DB NAFR JYOTI SHARMA Digitally signed by JYOTI SHARMA Date: 2025.09.18 10:18:44 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 561 of 2023 Ashok Dhruv S/o Ghasiram Dhruv Aged About 48 Years R/o Village Kosmi, Police Station Mainpur, District - Gariyaband Chhattisgarh ...Appellant(s) versus State Of Chhattisgarh Through - Station House Officer, Police Of Police Station - Mainpur, District - Gariyaband Chhattisgarh ... Respondent(s) For Appellant For Respondent/State : Mr. Sangharsh Pandey, G.A. : Ms. Smita Jha , Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Bibhu Datta Guru , Judge 16 .09.2025 1. Heard Ms. Smita Jha, learned counsel for the appellant. Also heard Mr. Sangharsh Pandey, learned Government Advocate appearing 2 CRA No.561 of 2023 for the respondent/State. 2. This criminal appeal filed by the appellant/accused under Section 374(2) of the Criminal Procedure Code, 1973 is directed against the impugned judgment of conviction and order of sentence dated 09.12.2022, passed by the learned Sessions Judge, Gariyaband, (C.G.) in Sessions Trial No. 61/2019, whereby the appellant has been convicted and sentenced as under: Conviction under Section Sentence U/s 302 of the Indian Penal Life Imprisonment and fine of Rs. Code 1,000/-, with default stipulation. 3. Case of the prosecution, in brief, is that on 22.06.2019, Atmaram Dhruv (PW-2), returned from the forest around 2:30 pm, ate food, and went to his neighbour PW-1 Rajesh Tande with his younger brother’s child. Daughter of Atrmaram namely; Ku. Kamleshwari Dhruw (PW-8) came and informed him that “Badi Maa” (sister-in-law Draupadi) was sleeping near the lemon tree. Later, when she checked, blood was found near Draupadi (deceased). His wife Ishwari also mentioned that Draupadi (deceased) and her husband, who is the brother of Atmaram, had quarreled. Thereafter, Atmaram called for 108 ambulance but when it did not arrive, he went with Rajesh to Camp Darripara to inform the police. Police later found Draupadi dead in a pool of blood near the lemon tree. It is alleged that Draupadi was drinking alcohol in the afternoon, and when the appellant (her husband) scolded and stopped 3 CRA No.561 of 2023 her, a fight broke out. In anger, he stabbed her in the chest with a sickle, causing injuries that led to her death while she was fleeing towards backyard. 4. On the basis of the information, an first information report No. EX.P-21 was registered against the accused/ appellant at Police Station Mainpur under Section 302 IPC in Crime No. 63/2019. The post mortem of the dead body was conducted. The accused was arrested and the memorandum statement of the accused in front of witnesses was recorded as Ex. P-04 and on the basis of memorandum, an iron sickle and a T-shirt were seized as per seizure memo Ex. P-06. 5. During investigation, the spot map was prepared (Ex. P-28) and after investigation, charge-sheet was filed and the trial Court has framed charges against the appellant for the offences punishable under Section 302 of the IPC and proceeded on trial. The appellant abjured the guilt and entered into defense stating that he has not committed any offence and he has been falsely implicated. 6. In order to bring home the offence, the prosecution examined as many as 23 witnesses and one defense witness and exhibited 29 documents. 7. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 19.12.2022 convicted the accused/appellant for the offence punishable under Section 302 of the IPC and sentenced him as aforementioned, against 4 CRA No.561 of 2023 which, this criminal appeal has been filed. 8.
Legal Reasoning
Learned counsel for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant, as the prosecution has failed to prove the offence beyond reasonable doubt. She would submit that the learned trial Court has not taken into consideration the evidence available on record in its proper prospective and thereby committed grave error in being selective in appreciating those piece of evidence which are incriminatory to the appellant/accused and discarded those piece of evidence which are favourable to the appellant. The learned trial Court has failed to see that there is no eyewitness to the incident and there are material omission and contradiction in statements of prosecution witnesses. She would further submit that the conviction of appellant is purely based on the evidence adduced by the police officials during investigation which is highly unreliable, though their evidence has not been duly corroborated by the independent witness. He would further contend that the appellant without any basis has been falsely roped in the present case as the learned trial Court has failed to consider that the prosecution could not prove any incident against the accused. She further submits that there was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellant caused injuries to the deceased, which caused his death. Therefore, the case of the present appellants falls within the purview of Exception 4 to Section 300 of the IPC and the 5 CRA No.561 of 2023 act of the appellant is culpable homicide not amounting to murder, and therefore, it is a fit case where the conviction of the appellant for the offence punishable under Section 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Further, as the appellant is in jail since 23.06.2019 and he has completed more than 06 years, 3 months of his jail sentence, and therefore, considering the period he had already undergone, he be awarded the sentence of the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part. 9. Per contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He further submits that the learned trial Court has rightly convicted the appellant for the offence under Section 302 of the IPC. It has been contended that the appellant has committed henious crime of murder and in such circumstances, it is not the case where conviction of the appellant for the offence under Section 302 of IPC requires to be altered to Section 304 Part-I or Part-II of IPC. Thus, the present appeal deserves to be dismissed. 10. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 11. The question for consideration would arise before this Court 6 CRA No.561 of 2023 whether the appellant has committed such offence punishable under Section 302 of the IPC. The prosecution for proving its case beyond reasonable doubt examined the witnesses whose statements have been recorded before the trial Court observed hereinbelow:- 12. PW-1 Rajendra Kumar Tandes deposed that the house of appellant and his house are adjacent to each other. He was getting bricks laid in front of his house and at that time Atmaram (PW-2) brother of the appellant was with him along with his younger brother's daughter. At the same time, Atmaram's daughter (PW-8) came and told that appellant killed her elder mother. He further stated that he looked inside the garden from courtyard of his house because the curtain is small which is visible from his house. The deceased was lying on the ground near a lemon tree in the garden. Blood was oozing out of the chest of the deceased. Then Atmaram came to his house and said that appellant has killed his sister-in-law and thereafter he dropped Atmaram to the police station. 13. PW- 2, Atmaram Dhruv deposed that the incident took place about 4-6 months ago. On the date of the incident, he returned from work and took his younger brother's daughter to teacher Rajendra's house, whose house is adjacent. At that time, his daughter Kamleshwari (PW-8) came and told him that Badi Maa (deceased ) was sleeping under a lemon tree. He did not go there due to fear and she told him that Badi Maa (deceased) was bleeding near her chest. Then he called 108 ambulance, when the ambulance did not arrive, he went to Darripara 7 CRA No.561 of 2023 Chowki with Rajendra and informed about the incident. He also stated that the accused and the deceased used to fight every day. However, during the cross examination this witness was declared hostile. 14. PW-3, Lalsingh Dhruv deposed that incident took place about a year ago. On the date of the incident, he had gone to the farm and returned from the farm in the evening. He stated that he is village Patel. He further stated that when he reached the spot, the police had already done the Panchnama of the deceased. The dead body of the deceased was lying near a lemon tree. He further deposed that the villagers and this witness was also there when the appellant told that he had killed his wife with a sickle and said that he would show them where it was kept and took out the sickle from the kitchen where it was sealed and gave it to the police. He further in his cross examination has clearly stated that he only saw the appellant bringing sickle from the kitchen and he has not heard the appellant stating that he has killed his wife. 15. PW-4 Eshwari Dhruv stated in his examination-in-chief that the accused and the deceased were fighting with each other, at that time she was filling water from the borewell. She further stated that she saw from the door of her garden that the deceased, was lying near the lemon tree adjacent to their house. She further stated that she do not know what happened after that. She in her cross examination has accepted the suggestion that she has not seen the appellant hitting the deceased and further stated 8 CRA No.561 of 2023 that the appellant is weak from right hand and leg. She further accepted the suggestion that other people who drank alcohol also used to come to the house of the appellant. She further accepted the suggestion that on the date of the incident, the appellant was lying unconscious after drinking alcohol. She also stated that the appellant was not in a condition to walk due to intoxication. She further stated that she do not know how the incident happened. 16. PW-8 Ku. Kamleshwari Dhruv, niece of the deceased and appellant, stated the incident took place about a year ago. On the date of the incident, she had gone to her maternal uncle Rajendra Tande's house to work. The sand had finished, so she was going towards Rajendra Guruji's garden, where she saw the deceased was lying near the lemon tree in the garden. After that she called her father (PW-2) and told him that the deceased was sleeping on the floor near the lemon tree in the garden. She further stated that she had seen the deceased from a distance and she do not know what happened. This witness has been declared hostile, however she stated in her cross examination that her elder father/ appellant was drunk and was mumbling something and she has not seen the deceased and appellant fighting. 17. PW-23 Dr. Jayant Chandrakar stated in examination in chief that deceased was brought before him and on internal examination on the body she found that there was a puncture wound of 2 x 2 cm in the right 9 CRA No.561 of 2023 lung of the deceased. Both the chambers of the heart were empty and pale. There was abnormality in the large vessels, diaphragm, intestines. The membrane was pale. Mouth and oesophagus were half open and foam was coming out of them. All other organs were normal. He further stated that in his opinion the death of the deceased is due to cardio pulmonary failure, lung failure, stab wound, asphyxia. The manner of death is haemorrhage and asphyxia due to stab wound. The death of the deceased occurred within 24 hours of examination. The nature of death is Depends on Circumstance. The postmortem report given by him is Ex.P.-29. 18. Perusal of the above statement would show that the accused, in the drunken stage on some trivial issue in a fit of rage, assaulted his wife, due to which, the deceased suffered grievous injuries and succumbed to death. In fact, it is a case of house murder and as such the accused was required to give plausible and convincing explanation about the circumstances, in which, the deceased was found dead in his house. 19. Section 106 of the Evidence Act reads 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.” 20. The law regarding under Section 106 of the Indian Evidence Act, 10 CRA No.561 of 2023 1872 is well settled. The unnatural death of deceased took place in the house of the appellant. 21. 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. 22. 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 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 11 CRA No.561 of 2023 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." 23. 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 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." 12 CRA No.561 of 2023 24. In the matter of State of West Bengal v. Mir Mohammad Omar and others reported in (2000) 8 SCC 382, the Supreme 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 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 13 CRA No.561 of 2023 events, human conduct etc. in relation to the facts of the case.” 25. 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 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.” 26. From the material available on record, we are of the considered 14 CRA No.561 of 2023 view that the learned trial Court has rightly held that it is the appellant/accused who has caused injuries over the body of the deceased and caused her death. In examination under Section 313 Cr.P.C. the appellant has failed to offer any plausible explanation with regard to the death of the deceased. Accordingly, we hereby affirm the said finding. 27. The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant. 28. It is a trite law that “culpable homicide” is a genus and “murder” is its species and all “murders” are “culpable homicides, but all “culpable homicides are not “murders” as held by the Hon’ble Supreme Court in the matter of Rampal Singh v. State of Uttar Pradesh1. The intention of the accused must be judged not in the light of actual circumstances, but in the light of what is supposed to be the circumstances. 29. The Hon’ble Supreme Court in the case of Basdev v. State of Pepsu2 has made the following observations : “Of course, we have to distinguish between motive, intention and knowledge. Motive is something which