High Court of Chhattisgarh
Case Details
1 ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.02.14 16:26:18 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR 2025:CGHC:7661-DB NAFR CRA No. 811 of 2021 Dev Kumar Barle S/o Shiv Kumar Barle Aged About 22 Years R/o Khoplidih Para, P.S.-Utai, District-Durg, Chhattisgarh, District : Durg, Chhattisgarh versus ... Appellant State of Chhattisgarh Through Police Station- Navai, District-Durg, Chhattisgarh, District : Durg, Chhattisgarh ... Respondent (Cause-title taken from Case Information System) For Appellant For State/Respondent : Mr. Arjun Lal Singroul, Advocate : Mr. Shaleen Singh Baghel, Dy. G.A. Hon'ble Shri Ramesh Sinha, Shri Ravindra Kumar Agrawal Chief Justice , Judge Hon'ble Judgment on Board Per Ramesh Sinha , Chief Justice 13.02.2025 1. Heard Mr. Arjun Lal Singroul, learned counsel for the appellant. Also heard Mr. Shaleen Singh Baghel, learned Deputy Government Advocate, appearing for the State/respondent. 2. This criminal appeal is filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and 2 order of sentence dated 30.06.2021 passed by the learned 7th Additional Sessions Judge, Durg, District Durg (C.G.) in Sessions Trial No.33 of 2019, whereby the appellant/accused has been convicted for the offence punishable under Section 302 of the Indian Penal Code (‘IPC’) and sentenced to undergo imprisonment for life and fine of Rs.1,000/-, in default of payment of fine amount, additional rigorous imprisonment for 02 months. 3. The case of the prosecution, in brief, is that: on 19.10.2018, at about 10:00 AM, in the house of Nirmala Bai (PW-1) at Minimata Nagar, Newai within the ambit of Police Station Nevai, District Durg (Chhattisgarh), the accused-appellant herein strangulated his wife, namely, Sandhya Barle (deceased) by means of her dupatta, due to which she died and, thereby, committed an offence under Section 302 of the IPC. 4. Further case of the prosecution, in nutshell, is that on 19.10.2018, Shashikala Chandel (PW-4) has lodged a report (Ex.P/2) at Police Station Nevai, District Durg alleging therein that on the date of incident i.e. 19.10.2018 she herself had come to her maternal home situated at Minimata Nagar Nevai to celebrate Navratri and Dussehra festival on 15.10.2019 and on the same day, her middle sister i.e. deceased Sandhya Barle along with her husband Devkumar Barle and child (who resides at village Khopali Utai) also came to her mother's house. When Sandhya Barle told her husband that she would not do any work, they started quarreling and accused-appellant used to assault her. Further, it 3 was alleged that on the morning of 19.10.2018, at about 10.00 AM, on the issue of not doing any work, accused Dev Kumar Barle got angry and started fighting with her sister Sandhya as also used to beat her. When she and her younger sister Ravina tried to intervene, the accused started chasing them by saying that "Who are you?" and when she and her sister went to the next room out of fear, the accused locked the door of his room from inside and started assaulting Sandhya. Shashikala Chandel and her sister saw all the incident from the window of the next room. It was also alleged that accused-appellant tied the neck of his wife i.e. Sandhya Barle with the help of her dupatta, took her to the kitchen and threw her on the floor. He pulled both the ends of the dupatta forcefully and strangulated Sandhya, due to which, she died and thereafter, the appellant-accused fled away from the spot. On the basis of said report (Ex.P/2), the Police Station Nevai registered the case vide rural murder case No. 0/18 and Dehati merg intimation was
Legal Reasoning
registered vide Ex.P/4. First Information Report bearing Crime No.245/2018 for the offence punishable under Section 302 of the IPC was registered vide Ex.P/3. During the investigation, the information about the untimely and accidental death of the deceased was given vide Ex.P/30. Summons under Section 175 of the Cr.P.C. was given vide Ex.P/5 and inquest report was prepared vide Ex.P/6 and Ex.P/7, respectively. Crime details form has been prepared vide Ex.P/7. Cotton stained with blood of the deceased was seized vide Ex.P/10. Notice under Section 160 of Cr.P.C. was given to the witnesses vide Ex.P/11. Dead body of deceased was sent for postmortem examination and in 4 the postmortem examination report (Ex.P/15), conducted by Dr. Vipin Jain (PW-7), it was opined that the cause of death of deceased was asphyxia as a consequence of strangulation. The appellant-accused was arrested vide Ex.P/12 and his memorandum statement was recorded vide Ex.P/13, pursuant to which a ‘blood stained shirt’, allegedly used by him in the crime in question was seized vide Ex.P/14. A blood stained dupatta and Kurta of the deceased was also seized vide Ex.P/32. The aforesaid seized articles sent to FSL examination to the Forensic Science Laboratory, Raipur and in the FSL report (Ex.P/35), blood was found on all the articles. 5. Thereafter, statements of witnesses were recorded under Section 161 of Cr.P.C. and, after due investigation, the police filed charge-sheet in the concerned jurisdictional Court and, thereafter, the case was committed to the Court of Sessions for trial in accordance with law, from where the learned 7th Additional Sessions Judge, Durg, District Durg (C.G.) received the case on transfer for trial and for hearing and disposal in accordance with law. 6. 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. 7. The prosecution in order to prove its case examined as many as 15 witnesses as PW-1 to PW-15 and exhibited 35 documents vide 5 Ex.P/1 to Ex.P/35, whereas the appellant-accused in support of his defence has not examined any witness, but has exhibited 01 document i.e. statement of Ku. Ravina Gaikwad vide Ex.D/1. 8. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 30.06.2021 convicted and sentenced the appellant in the manner mentioned in the second paragraph of this judgment, against which this appeal under Section 374(2) of the Cr.P.C. has been preferred by him calling in question the impugned judgment.
Legal Reasoning
9. Mr. Arjun Lal Singroul, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the learned trial Court has not proved the offence beyond reasonable doubt. He further submits that it is a case of house murder and there is no direct evidence available against the appellant. He further submits that although conviction of the appellant is substantially based on the evidence of Ravina Gaikwad (PW-3) and Shashikala Chandel (PW-4), who are sisters of the deceased and sister-in-law of the accused-appellant, but their evidence do not inspire confidence as their evidence are not safe for placing reliance in absence of any corroboration from independent source. Thus, the conviction of the accused-appellant herein is unsustainable, inadmissible and bad in law. It has been contended 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. It has been further 6 contended that the 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, as such, the impugned judgment of conviction is liable to be set aside and appellant-accused be acquitted/discharged from the said offence. 10. Per-contra, Mr. Shaleen Singh Baghel, learned State counsel supported the impugned judgment of conviction and order of sentence and submitted that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He further 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. 11. The learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC, as the accused-appellant has caused murder of his wife (deceased). Thus, the present 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. 13. In order to appreciate the arguments advanced on behalf of the 7 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- Sandhya Barle Sen was homicidal in nature ? 15. The learned trial Court, relying upon the statement of Dr. Vipin Jain (PW-7), who has conducted postmortem on the body of deceased vide Ex.P/15, has clearly come to the conclusion that the cause of death of the deceased was asphyxia as a consequence of strangulation and the death of the deceased was homicidal in nature. 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 affirm the said finding. 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/15) of Dr. Vipin Jain (PW-7) who conducted postmortem. (ii) As per the case of the prosecution, the fact of death of deceased Sandhya Barle was within the knowledge of the appellant, 8 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 of the Evidence Act, the main point to be established by prosecution is that the accused person was in such a position that he could have special knowledge of the fact concerned. 9 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 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 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 1 AIR 1956 SC 404 10 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).” 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 Supreme Court in 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 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 2 (2021) 10 SCC 725 11 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.” 22. 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 3 AIR 1956 SC 460 12 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, certain lies upon him. 23. 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 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, homicidal death due to asphyxia as a result of strangulation and the nature of death is homicidal has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Dr. Vipin Jain (PW-7) and the postmortem report (Ex.P/15) 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 evidence of Dr. Vipin Jain (PW-7) as well as the evidence of eye-witnesses i.e. Ravina Gaikwad (PW-3) and Shashikala Chandel (PW-4). 26. Ravina Gaikwad (PW-3), who is sister of the deceased and sister- 4 AIR 1974 SC 778 13 in-law of the deceased, has stated in her examination that on 19.10.2019, there was an altercation between the accused and her sister Sandhya and they thought it to be a fight between husband and wife, they came to the other room. Then, the accused closed the door of the room and started shouting as he took her sister Sandhya to the other room with her 09 month aged child. After some time, they heard the voice of Sandhya and suddenly the voice stopped, thereafter, accused opened the door of the room and they saw that dead body of Sandhya was lying inside the room and her dupatta was tied around her neck and blood was dripping from the place where she had fallen. 27. Likewise, Shashikala Chandel (PW-4) narrated the said version and corroborated the statement given by Ravina Gaikwad (PW-2). 28. Dr. Vipin Jain (PW-7) who has conducted the postmortem of the body of the deceased vide Ex.P/15 has found following injuries :- “External examination:- The body was stiff, the nails were blue, the face and eyes were swollen. There was a black eye in the left eye, the tongue was stuck between the teeth, red blood was oozing from the mouth and nose, the hood was swollen. A blue colored dupatta (very tight) was tied around the neck. Keeping the knot safe, the dupatta was cut and examined. The mark of the dupatta on the neck (ligature 14 mark) was clear on the front, less clear on the back and was present all around the neck, the size of which was about 27 cm. There were many scratch marks on the front side of the neck which were present up to the clavicle bone on both sides, scratch marks were also present on both shoulders. The name of the ligature mark is as follows:- A = Lump 9x3 cm. AB = 12 cm. AC = 14 cm. AD = 53 cm. The deceased was of normal height. The skull was normal. The skin on the back of the skull was soft. The sacrum was normal and congested. The brain and spinal cord were bright white in colour. On dissection, they were found to be congested. Internal examination:- In the chest cavity, the verda, ribs and lungs were congested. The larynx and upper part of the windpipe were compressed. Clotted blood was present in the windpipe. Both the lungs 15 were of normal size but on sectioning they were found congested. Clotted blood was present on the right side of the heart and the left side was empty. Clotted blood was present in the large vessels. The membrane in the abdominal cavity was normal. The intestinal membrane was congested. The mouth was closed. The tongue was pressed between the teeth. The food pipe was empty. The food bag contained half-digested food and fluid. The small intestine contained fluid and gas. The last end of the large intestine contained stool. The liver, spleen and kidney were of normal size, but on examination they were found to be congested. The urinary bladder was empty. The external genitals were normal. The uterus was of normal size and on examination a Copper-T was found in it. Tubes on both sides and ovaries were normal. Opinion:- The cause of death was asphyxia due to strangulation and the manner of death was homicidal. The interval between death and postmortem was 24 hours.” 16 29. Considering the evidences of the aforesaid witnesses as well as from the circumstantial evidence, it is evident that at the time of the incident, the accused was present in the room with the deceased and no one else was present in the room. The sisters-in-law of the accused and sisters of the deceased were seen the incident from the window. The dispute between the accused and the deceased on account of accused not doing any work and the deceased died due to strangulation. Moreover, the seized articles were sent for FSL examination and the FSL report (Ex.P/35) is found to be positive as the blood was found on all the articles. 30. A careful perusal of the aforesaid findings recorded by the trial Court would show that the prosecution has established that :- “death of deceased Rekhabai Sen was homicidal in nature; it is the appellant who has murdered the deceased by strangulating her neck with the held of dupatta.” 31. Considering the statements of the prosecution witnesses, the finding recorded by the trial Court in its judgment, it is reflected that the appellant has not offered any explanation under Section 313 of the Cr.P.C. and considering the statements of sisters of the deceased Ravina Gaikwad (PW-3) and Shashikala Chandel (PW-4), whose statement too has no reason to be disbelieved and there is also no reason for them to lie as they are eye-witnesses to the incident 17 disclosing the fact that the accused/appellant had strangulated the deceased with the help of dupatta, therefore, the act of the accused/appellant by strangulating the deceased clearly shows the intention of the accused/appellant to kill the deceased. For this reason, it is clearly and reliably established that it was the accused/appellant, who caused the death of the deceased by strangulating the deceased with the help of dupatta 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 offence punishable under Section 302 of the IPC. Therefore, we do not find any illegality or irregularity in the findings recorded by the trial Court. 32. For the foregoing reasons, the criminal appeal being devoid of merit and is liable to be and is hereby dismissed. 33. It is stated at the Bar that the appellant is in jail since 20.10.2018, he shall serve out the sentence as ordered by the learned trial Court. 34. 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. 18 35. 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 Anu