Patthalgaon, District Jashpur, Chhattisgarh v. State of Chhattisgarh Through Police Station Patthalgaon District
Case Details
1 2025:CGHC:13575-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 561 of 2021 Shobhan Sai Lohar S/o Ghursai Lohar Aged About 50 Years R/o Kachhar Bijapara, Police Station Patthalgaon, District Jashpur, Chhattisgarh. ... Appellant(s) (In Jail) versus State of Chhattisgarh Through Police Station Patthalgaon District Jashpur, Chhattisgarh. ...Respondent(s) For Appellant For Respondent/State : : Mr. Brijendra Singh, Advocate. Mr. S.S. Baghel, Deputy Government Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Per Ramesh Sinha , Chief Justice Judgment on Board 21 .03.2025 1. Heard Mr. Brijendra Singh, learned counsel for the appellant. Also
Legal Reasoning
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, certain lies upon him. 23. The principle of law laid down by their Lordships of the Hon’ble Supreme Court in the matter of 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 burden of proving the case against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence. 24. In the present case, death of the deceased was caused due to excessive bleeding and damage to the sensitive organs and brain tissue as a result of the head injury and the nature of death was homicidal and 3 AIR 1956 SC 460 4 AIR 1974 SC 778 10 pointed object has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Dr. Akash Kujur (PW-11) and the postmortem report (Ex.P/20) that the death of deceased was homicidal in nature. 25. As regards complicity of the appellant in crime in question, conviction of the appellant is substantially based on the evidences of Dr. Akash Kujur (PW-11). 26. Dr. Akash Kujur (PW-1), who conducted the postmortem of the deceased vide Ex.P/25 found the injuries as stated in paragraph 05 of this appeal and he opined that the death of the deceased was caused due to excessive bleeding and damage to the sensitive organs and brain tissue as a result of the head injury and the nature of the death was homicidal. During cross-examination, Dr. Kujur rejected the suggestion that the deceased's injuries might have resulted from a fall caused by alcohol consumption. 27. Investigating OfÏcer, K.K. Sahu (PW-16), has stated in his deposition that on 27.10.2019, in the presence of witnesses, accused Shobhan Lohar made a memorandum statement (Ex.P/5) regarding the murder of Ramiya Bai, which occurred on 26.10.2019. According to the memorandum statement, Shobhan Lohar had beaten Ramiya Bai with his hands, fists, and a stick, resulting in her death. Furthermore, Shobhan Lohar presented two wooden sticks (Ex.P/6) that were broken and separated, which were seized by the investigating ofÏcer. 28. Santram Banjara (PW-2) and Ram Dinu Vishwakarma (PW-8) did not support the prosecution's case in their Court testimonies. However, 11 they acknowledged signing the memorandum statement of the accused (Ex.P/5) and seizure document (Ex.P/6). When declared hostile witnesses by the prosecution and cross-examined, Santram Banjara (PW-2) admitted that accused Shobhan had given a statement (Ex.P/5), in his presence to the Police. Shobhan stated that he had hidden the stick used in the assault inside his house, on a wooden platform. When Shobhan handed over the two sticks, the Police seized them vide Ex.P/6. Santram also stated that the sticks had a substance resembling blood on them. 29. Now, the question is, whether the prosecution has discharged its initial or general burden or primary duty of proving the guilt of the accused beyond reasonable doubt? 30. In this regard, the trial Court observed that the prosecution established the chain of circumstantial evidence proving that on 26.10.2019, the accused and the deceased were together at the crime scene, their home. Prosecution witnesses Raju (PW-4) and Shankar (PW- 5), along with merg intimation (Ex.P/8) and FIR (Ex.P/9), reveal that on 27.10.2019, the accused visited Shankar’s house between 5-6 a.m. and stated that he and his wife had consumed alcohol the previous day, leading to an argument. He admitted to hitting the deceased with his hands, fists, and a stick, causing her death. The Medical OfÏcer, Dr. Akash Kujur (PW-11), reported in Ex.P/20 that the nature of the deceased's death was homicidal. The Investigating OfÏcer, K.K. Sahu (PW-16), and prosecution witness Santram (PW-2) testified, and documents i.e. memorandum statement of accused (Ex.P/5), property seizure memo (Ex.P/6) and FSL report (Ex.C/1) reveal that on 27.10.2019, the Investigating OfÏcer sent the seized stick (Ex.P/6) for FSL 12 examination, which confirmed the presence of human blood. The accused failed to provide any explanation for the circumstances that implicated him in the crime. The prosecution successfully proved the facts of the case through reliable evidence, establishing the guilt of the accused beyond reasonable doubt. 31. A careful perusal of the aforesaid findings recorded by the trial Court would show that the prosecution has established that, 1. death of deceased was homicidal in nature; 2. it is the appellant who has murdered the deceased with the help of stick (danda). 32. Considering the statements of the prosecution witnesses, the finding recorded by the trial Court in its judgment, the facts that the appellant has not offered any explanation under Section 313 of the Cr.P.C., it is clearly and reliably established that it was the accused/appellant, who caused the death of the deceased by hitting the deceased with help of stick (danda) and in this regard, there is no defence on the part of the accused/appellant during his examination under Section 313 of the Cr.P.C., and therefore, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted the accused/appellant for the offences punishable under Section 302 of the IPC. Therefore, we do not find any illegality or irregularity in the findings recorded by the trial Court. 33.
Arguments
heard Mr. S.S. Baghel, learned Deputy Government Advocate, appearing for the respondent/State. BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.04.03 15:57:54 +0530 2. This criminal appeal filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is 2 directed against the impugned judgment of conviction and order of sentence dated 19.02.2021, passed by the learned Additional Sessions Judge, Patthalgaon, District Jashpur (C.G.) in Session Trial No. 34 of 2019, whereby the appellant has been convicted and sentenced as under: Conviction under Section Section 302 of the Indian Sentence Rigorous imprisonment (for short, Penal Code (for short, ‘IPC’) ‘R.I.’) for life and fine of Rs. 500/-, in default of payment of fine, 06 months R.I. more. 3. Case of the prosecution, in brief, is that on 27.10.2019, Shankar Ram Vishwakarma (PW-5) lodged a merg intimation (Ex.P/8) at Patthalgaon Police Station, stating that on 26.10.2019, the accused, Shobhan Sai Lohar, was drinking alcohol with Ramiya Bai at his residence. The next morning, the accused told Shankar that Ramiya Bai was intoxicated and abusing him, so he hit her with his hands, fists, and a stick, causing her to fall and injure her head. Afterward, he went to sleep, and Ramiya Bai did not wake up. Shankar, along with his brother and sons, found Ramiya Bai's body stiff and lifeless with an injury on her left ear. 4. Based on Shankar's report, a Merg Intimation (Ex.P/8) and First Information Report (FIR) vide Ex.P/9 for the offence punishable under Section 302 of the IPC was registered against the accused. The investigation led to the preparation of a crime details form (Ex.P/7), inquest report (Ex.P/2), and postmortem examination (Ex.P/25) of the deceased. The accused was arrested vide Ex.P/10, and his memorandum 3 statement (Ex.P/5) was recorded. Two wooden sticks vide Ex.P/6 were seized based on the accused's disclosure. 5. Dead body of the deceased was sent for postmortem to the Community Health Center, Patthalgaon, District Jashpur (C.G.). Dr. Akash Kujur (PW-11) conducted postmortem vide Ex.P/25 and found that her face was pale, with a lacerated wound on the frontal part of her scalp, measuring 1 cm x 1 cm, which was shallow. The pinna of her left ear was also lacerated, measuring 2 cm x 1 cm, and the lower part of the pinna was completely severed. There were fractures on both sides of the occipital region of her head, and scratch marks were present on the right side of her face and forehead. There were contusions on her left arm and on both thighs. The deceased was wearing an orange-colored blouse with a reddish-brown stain, and a white thread was tied around her waist with red stains on it. She was also wearing a green-colored petticoat with bloodstains. There were tattoo marks on both sides of her ankles. After conducting the postmortem, the Doctor expressed his opinion in the postmortem report vide Ex.P/20 that the death of the deceased was caused due to excessive bleeding and damage to the sensitive organs and brain tissue as a result of the head injury. The nature of the death was homicidal. 6. Statements of the witnesses were recorded. After due investigation, the Police filed the charge-sheet against the accused/appellant before the jurisdictional criminal Court and the case was committed to the Court of Session for trial from where the learned Additional Sessions Judge, Patthalgaon, District Jashpur (C.G.) received the case on transfer for trial and for hearing and disposal in accordance with law. 4 7. The trial Court has framed charges against the appellant for the offence punishable under Section 302 of the IPC and proceeded on trial. The appellant abjured the guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 8. In order to bring home the offence, the prosecution examined as many as 16 witnesses and exhibited 25 documents. The appellant/accused examined none in his defence. 9. The learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 19.02.2021, convicted the accused/appellant for the offence punishable under Section 302 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed. 10. Learned counsel for the appellant vehemently argued that the conviction of the appellant is substantially based on the circumstantial evidence, without there being any eye witness, though the chain of circumstances are missing and not connected to each other. None of the witnesses have supported the case of prosecution. He further submits that even if the entire case is taken at its face value, the case would not travel beyond Section 304 Part-II of the IPC. Evidence adduced on behalf of the prosecution is suspicious in nature and same is not safe for placing reliance, that too, for conviction of the appellant for commission of heinous offence of murder, therefore, the appellant is entitled for benefit of doubt. 5 11. Per contra, learned State counsel supports the impugned judgment and submits that there is ample evidence on record to connect the accused/appellant with the offence in question. The learned trial Court, after proper appreciation of the evidence and materials available on record, has convicted and sentenced the appellant/accused, which warrants no interference, and therefore, the appeal deserves to be dismissed. 12. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the trial Court with utmost circumspection and carefully as well. 13. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 14. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased was homicidal in nature ? 15. The trial Court, relying upon the statement of Dr. Akash Kujur (PW- 11), who has conducted postmortem on the body of deceased, vide Ex.P/25, has clearly come to the conclusion that the death of deceased was caused due to excessive bleeding and damage to the sensitive organs and brain tissue as a result of the head injury. The nature of the death was homicidal. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellant. We hereby afÏrm the said finding. 6 16. The next question for consideration would be, whether the trial Court has rightly held that the appellant is author of the crime by relying upon the following circumstances:- (i) Homicidal death was proved by the prosecution as per postmortem report (Ex.P/20) of Dr. Akash Kujur (PW-11) who conducted postmortem. (ii) As per the case of the prosecution, the fact of death of deceased was within the knowledge of the appellant, however, there was no any explanation given by the appellant in his statement under Section 313 of the Cr.P.C. Thus, burden of proof was on the appellant to explain such circumstance, which he failed to explain. 17. Now, the question would be, whether Section 106 of the Evidence Act would be applicable or not? 18. 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.” 19. 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 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 7 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. 20. In the matter of Shambhu Nath Mehra v. The State of Ajmer1, their Lordships of the Hon’ble 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 difÏcult, for the prosecution, to establish facts which are “especially” within the knowledge of the accused and which he could prove without difÏculty 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 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) 1 AIR 1956 SC 404 8 and Seneviratne v. R. 1936-3 ER 36 AT P.49 (B).” Their Lordships further held that Section 106 of the Evidence Act cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts. 21. The decision of the Hon’ble Supreme Court in the matter of Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar2 in which it has been held by their Lordships of the Hon’ble 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 2 (2021) 10 SCC 725 9 accused.” 22. Similarly, the Hon’ble 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
Decision
For the foregoing reasons, the criminal appeal being devoid of merit and is liable to be and is hereby dismissed. 13 34. It is stated at the Bar that the appellant is in jail, he shall serve out the sentence as ordered by the learned trial Court. 35. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence 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 High Court Legal Services Committee or the Supreme Court Legal Services Committee. 36. Let a certified copy of this judgment along with the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Brijmohan