Durg, Chhattisgarh v. State Of Chhattisgarh Through Police Station Purani Bhilai, District Durg, Chhat
Case Details
1 2025:CGHC:10729-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 765 of 2021 K. Shrinivas @ Vashu S/o Shri K. Surya Narayan Aged About 39 Years R/o Panchsheel Nagar Charoda, Police Station Purani Bhilai, District Durg, Civil And Revenue District Durg, Chhattisgarh., District : Durg, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station Purani Bhilai, District Durg, Chhattisgarh., District : Durg, Chhattisgarh ... Respondent (Cause Title taken from Case Information System) For Appellant For Respondent/State : : Mr. Ajay Mishra, Advocate Mr. Hariom Rai, Penal Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 05/03/2025 1. The present appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 against the impugned judgment of Digitally signed by VEDPRAKASH DEWANGAN conviction in sentence dated 07-06-2021 passed by learned 2 Sessions Judge, Durg in Sessions Case No. 137 of 2019, whereby the appellant has been convicted for the offence under Section 302 of IPC and sentenced rigorous imprisonment for life with fine of Rs. 100/-, in default of payment of fine, additional R.I. for 10 days. 2.
Legal Reasoning
The brief facts of the case are that the wife of the deceased A.V.
Legal Reasoning
Sheshu Kumar, namely Smt. K. Soma/PW-1 gave a merg intimation (exhibit P-1) on 13-06-2019, at about 1:00 AM at Police Station Old Bhilai that on 12-06-2019, at about 11:00 PM, her brother-in-law returned from his work and her husband asked him about his late coming to the house, by which quarrel took place between them and both of them had gone to the bedroom of her brother-in-law. After a short while, the noise of her husband stopped coming from the room and when she knocked the door of her brother-in-law, he has not opened the door. After about 15 minutes, when he opened the door, she saw that her husband is lying dead on the floor, blood was coming out from his mouth and full pant of the appellant was tied on his neck. Based on the merg intimation given by PW-1/Smt. K. Soma, the FIR/Exhibit P-2 was registered against the appellant for the offence under Section 302 of IPC. Inquest/Exhibit P-8 of the dead body of the deceased was prepared in presence of the witnesses and the dead body was sent for its post-mortem to District Hospital, Durg where PW-6/Dr. B.R. Sahu conducted the post- mortem of the dead body of the deceased and gave his report (exhibit P-9). While conducting the post-mortem, the doctor has noticed the following injuries on his body:- 3 “(i) 3” x 4” inches size bruise (swelling over right arm, brownish-blackish colored with contact abrasion 3 x 2 cm over right arm AM in nature, (ii) 3 ½” x 3” inches size bruise over left arm, blackish-brownish colored with swelling AM in nature. (iii) 2 x ½ cm contact abrasion over left elbow antemortem. (iv) 3 x 1 cm contact abrasion over right side shoulder back side. (v) 6 x 8 cm contact right side scapular region. There was transverse ligature mark over front of neck and side of neck, below chin and below larynx and thyroid cartilage width 6 cm and length of 16 cm, abrasion and ecchymosis present over ligature mark, side of neck muscles bruise present, AM in nature and after conducting the postmortem, the doctor has opined that mode of death is asphyxia, nature of death can be homicidal, cause of death can be strangulation. To know that whether deceased consumed alcohol at the time of incident, viscera and blood sample preserved for chemical analysis of alcohol. Definite opinion about time since death can not be given as body was kept in deep freezer.” 4 3. Query was raised from the doctor, who conducted the postmortem with respect to the ligature and he opined through the query report (exhibit P-10), which is reproduced hereinbelow :- 1. क्या ज्शुदा फू लपेंट को गले में फं साकर कसकर दबाने से मृत्यु हो सकती है? Q No.1. Ans. tIr’kqnk QqyisaV dks xys esa Qalkdj dldj nckus ls e`R;q gks ldrh gSA 2. क्या मृतक के गले में आया लिलगेचर माक" ज्शुदा फू लपेंट के गले में कं सने से आया है? Q No.2. Ans. e`rd ds xys esa vk;k fyxspj ekdZ tIr’kqnk QqyisaV dks xys esa dlus ls vk ldrk gSA 4. Spot map (exhibit P-3) was prepared by the police and Exhibit P-5 was prepared by the Patwari. The full pant, which was used as ligature and viscera of the deceased have been seized vide seizure memo (exhibit P-11). The appellant was arrested on 13-06-2019. the viscera was sent for its chemical examination to State FSL Raipur, from where report (exhibit P-20) was received and according to the viscera report, no any poisonous substance or ethyl alcohol were found on the viscera of the deceased. 5. Statement of the witnesses under Section 161 of CRPC and statement of the eyewitness, who is the daughter of the deceased K. Ishika under Section 164 of CRPC have been recorded and after completion of usual investigation, charge sheet was filed before the learned Judicial Magistrate First Class, Bhilai-3, District Durg for the 5 offence under Section 302 of IPC. The case was committed to the Court of Learned Sessions Judge, Durg for its trial. 6. The learned trial Court has framed charge against the appellant for the offence under Section 302 of IPC. He denied the charge and claimed trial. 7. In order to prove the charge against the appellant, the prosecution has examined as many as 10 witnesses. Statement of the appellant under Section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. 8. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in the earlier part of the judgment. Hence, this appeal. 9. Learned counsel for the appellant would submit that prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses which cannot be made basis to convict him in the offence in question. There is no eyewitness to the incident and only on suspicion the allegations have been leveled against the present appellant. The place from where dead body is found is a room of common use by other family members and other inmates of the house are also there at the time of alleged incident. Since there was 6 a heated verbal exchange between the appellant and the deceased before the incident, the family members have suspected that he committed his murder by strangulation. In absence of any proof by the prosecution that the appellant had the occasion to commit murder of the deceased by strangulation, the burden under Section 106 of the Indian Evidence Act cannot be shifted upon him to explain the fact within his knowledge. The case of the prosecution is based on circumstantial evidence and the chain of circumstances are not complete. Hence, the appellant cannot be convicted and is entitled for acquittal. 10. On the other hand, learned counsel for the State opposes and has submitted that from the evidence of the wife of the deceased/PW-1, it is established that on the date of incident when the appellant came late in his house, the deceased asked him about his late coming, on which he became enraged and raised quarrel. Both of them entered into the room, which he has bolted from inside and in a short while, the noise of quarrel was stopped and when PW-1 tried to open the door, she could not succeed and it is only after 15 minutes, when the appellant opened the door, she found her husband lying dead in the room, where only the appellant and the deceased were there. Her husband has been strangulated by the jeans pant of the appellant inside the room and he has not explained as to how the deceased received injuries inside the room in which he and deceased only were the person present at the relevant point of time. The burden is upon appellant to give probable 7 explanation, in which he has failed to do so. The presence of the appellant with the deceased at the relevant time and place of the incident has duly been proved by PW-2/K. Uma Kiran, who is the sister-in-law of the appellant as well as deceased and the daughter of the deceased (PW-8). Just before the incident, quarrel took place between them, which also supports that the appellant has committed murder of the deceased. Therefore, there are ample evidence against the appellant in the case and his appeal is liable to be dismissed. 11. We have heard learned counsel for the parties and the perused of the record of the case. 12. The homicidal death of the deceased has been proved by the evidence of Dr. B.R. Sahu/PW-6 who stated in his evidence that on 13-06-2019 he conducted the post-mortem of dead body of the deceased and found certain injuries on his body and transverse ligature mark over his neck. After the post-mortem of the dead body of the deceased, he opined that all the injuries found on the body of the deceased was antemortem in nature and the mode of death is asphyxia, nature of death can be homicidal and cause of death can be strangulation. He also advised for chemical examination of the viscera of the deceased for confirmation of presence of alcohol. From the FSL report (exhibit P-20), no any contents of poisonous substance or ethyl alcohol has been found on the viscera of the deceased. 8 13. From the query report (exhibit P-10), the doctor has clearly opined that by the ligature of full pant, death could have been possible, if it will be used as a ligature for strangulation. In the cross examination of this witness, nothing could be elicited except that no foreign body was found on the dead body of the deceased and on the ligature mark on the neck of the deceased, there is no impression of cloth fibre. From the evidence of Dr. B.R. Sahu, the homicidal death of the deceased has daily been proved by the prosecution. 14. The homicidal death of the deceased was further found proved by the merg intimation (exhibit P-1) lodged by the wife of the deceased Smt. K. Soma/PW-1 and the witnesses of the inquest/exhibit P-8. PW-5/M.S. Ganesh, who also proved that when he reached on the spot, he saw the dead body of the deceased inside the room and he is the witness of inquest (exhibit P-8). From the evidence produced by the prosecution, after the appreciation of the evidence on record, the learned trial Court has held that the deceased has died due to homicidal death and this Court also found that the said finding recorded by the learned trial Court is neither perverse nor contrary to the record and we hereby affirm that finding. 15. So far as the involvement of the appellant in the offence in question is concerned, the case of the prosecution is based on the witnesses PW-1/Smt. K. Soma (wife of the deceased), PW-2/K. Uma Kiran (sister-in-law of the deceased) and PW-8/K. Ishika (daughter of the deceased). PW-1, who is the wife of the deceased, has stated in her 9 evidence that on the date of incident, when her brother-in-law/appellant came to house at about 11:30 in the night, her husband asked, as to why he is coming late regularly, then he replied that he has to travel up to Raipur and therefore he is getting late in coming to his house. Due to the conduct of the appellant, her husband has become enraged and he knocked the door of the appellant. When he opened the door, quarrel took place between them and due to the reason that the appellant was standing on the door, she could not open the door, and when she tried to see the movement inside the room from a slit of the door, she saw the movement of the legs of her husband and despite her efforts, she could not open the door. She sent her daughter to call her sister-in- law and called other family members and when the family members came there, despite that he has not opened the door. When the noise was stopped coming from the room, the appellant opened the door and then they saw the dead body of the deceased. Blood was oozed out from his mouth and there was no movement on his body. Then he called a mobile call on 100 number and informed the police. Then other family members had also came there and when the police came there, he started his proceedings. In cross-examination, though she admitted that she has not seen the act of strangulation by the appellant, but the defence could not extract any material from her that on the date of incident, the appellant and the deceased were not in the room and the same was bolted from inside or there was no quarrel between them. When she 10 specifically stated in her chief examination that on the date of incident, quarrel took place between appellant and the deceased and both of them have entered into the room and after some time, when the appellant opened the room, her husband was found dead in injured condition. Then this witness is required to cross-examine on all that points, but she has not been cross-examined on all those points. Her presence on the spot is quite natural, as she is the wife of the deceased and it was the night time when the incident took place. 16. PW-2/K. Uma Kiran is the sister-in-law of the deceased, who stated in her evidence that on the date of incident, when she was sleeping in her room, her niece K. Ishika woke her up and that very moment she received a mobile call from K. Soma that the quarrel is going on between the appellant and the deceased and when she stepped down from her room, she saw that the room of the appellant was bolted from inside and the appellant and deceased were inside the room. They tried to open the door, but they could not succeed. After about half an hour, when the appellant opened the door, they saw that the deceased lying on the floor of the room and he has already died. Blood was coming out from his mouth and then they informed the police. In her cross-examination, she too has remained firm that on the date of incident, the appellant and the deceased were inside the room which was bolted from inside and when the appellant opened 11 the room, they saw the dead body of the deceased lying on the floor having injury on his neck along with ligature. 17. PW-8/K. Ishika, who is the daughter of the deceased, has stated in her evidence that on the date of incident, there was a quarrel between her father and her uncle on the issue that her uncle is coming late regularly. Both of them had gone to the room of her uncle and when she along with her mother tried to open the door, her uncle had not opened the door and after some time when he opened the door of his room, they saw that her father has lying dead on the floor having ligature of full pant on his neck. She also firmly denied the suggestion given by the defence that she was sleeping at the time of incident and she stated that she was awoke at the time of incident and witnessed the quarrel between her uncle and her father. In her cross examination also, there is nothing to disbelieve her evidence that there was no quarrel between them on that day. 18. From these evidences, the prosecution has duly proved that on the date of incident, there was a quarrel between the appellant and the deceased on the issue of coming late and both of them went inside the room of the appellant and after some time when the appellant opened the door, the dead body of the deceased was found lying on the floor having ligature mark on his neck. The quarrel was witnessed by PW-1, PW-2 and PW-8 and they have also proved that both of them (appellant and the deceased) were inside the room, 12 which was bolted from inside and thus what happened inside the room was well within the knowledge of these two persons i.e. the appellant or the deceased. Since the deceased has died at the same time, it is for the appellant to explain as to how the deceased has received injuries on his body and how he met with a homicidal death by strangulation. The fact clearly and unerringly suggests that during the quarrel, the appellant strangulated the deceased by ligature of full pant, by which he died inside his room. 19. The learned trial Court has also found the following circumstances proved against the appellant, which is reproduced herein below:- “1. घटना दिदनांक 12/06/2019 को रादि% 11:15 बजे आरोपी के दि&लम्ब से आने के कारण आरोपी और उसके बड़े भाई मृतक के .व्ही. शेषु कु मार का आपस में &ाद- दि&&ाद हुआ और यही &ाद-दि&&ाद अपराध का हेतुक था। 2. उ्ሹ &ाद- दि&&ाद के कारण मृतक के .व्ही. शेषु कु मार आरोपी के कमरे के अंदर गए और दोनों पुनः &ाद दि&&ाद दिकए, जिजसे अ.सा. 1 के . सोमा ने सुना और &ह आरोपी के कमरे के पास आयी। 3. आरोपी का कमरा अंदर से बंद था और जब अ.सा. 1 के . सोमा ने अपने दे&रानी अ.सा. 2 के . उमादिकरण के साथ बहुत बार दर&ाजा खोलने को कहा, तो स्&यं आरोपी ने दर&ाजा खोला, तो उ्ሹ दोनों साቌኌ<यों ने देखा दिक मृतक के गले में आरोपी का पैंट कसा है और उसके मु ंह से र्ሹ दिनकल रहा है और उसकी मृत्यु हो गई है।” 20. In the circumstantial evidence, when the appellant and the deceased were inside the room, then it is only the appellant, who in his special knowledge, what happened inside the room on that day 13 and he has to explain as to how the deceased met with a homicidal death. Section 106 of the Indian Evidence Act, 1872 caused an obligation upon the accused to explain the said circumstance. 21. In the case of Balvir Singh v. State of Uttarakhand, (2023) Live Law (SC) 861 the Hon’ble Supreme Court in Para 33 and 34 has held as under: “33. Section 106 of the Evidence Act, 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. Illustration (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket, The burden of proving that he had a ticket is on him. 34. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word "especially" means facts that are pre-eminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the 14 accused is not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) 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 the facts which are, "especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience". 22. In the case of Nagendra Sah v. the State Of Bihar (2021) 10 SCC 725 the Hon’ble Supreme Court in Para 23 has held as under: “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.” 23. From the overall evidence produced by the prosecution and the facts and circumstances of the case, clearly proves the guilt of the appellant that on the date of incident, he committed the murder of the deceased by strangulation. Under close scrutiny of the evidence, we do not found any ground to upset the well-reasoned 15 findings recorded by the learned trial Court while convicting and sentencing the appellant in the offence in question. 24. Consequently, the appeal filed by the appellant fails and hereby dismissed. 25. The appellant shall serve the entire sentence as awarded by the learned trial Court. 26. 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. 27. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice ved