Nafr High Court
Case Details
1 CRA No.1206 of 2024 RAHUL JHA Digitally signed by RAHUL JHA Date: 2025.07.11 18:20:07 +0530 2025:CGHC:32192-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1206 of 2024 Rajkumar Singh S/o Heeralal Singh Aged About 37 Years R/o Neur, Police Station Kotadol, District - Korea (At Present District Manendragarh Chirmiri - Bharatpur), Chhattisgarh. versus Appellant 1 - State Of Chhattisgarh Through - The Officer-In-Charge Kotadol, District - Korea (At Present District Manendragarh Chirmiri -Bharatpur), Chhattisgarh. Respondent (Cause title is taken from Case Information System) For Appellants For Respondent/State : Mr. Hemant Kumar Agrawal, Advocate : Mr. S.S. Baghel, Dy. GA Hon’ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board Per, Bibhu Datta Guru, Judge 11/07/2025 Heard. 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 2 CRA No.1206 of 2024 30/04/2024 passed in Sessions Trial No. 28/2020 by the learned II Additional Sessions Judge, Manendragarh, District Korea (C.G.), whereby the appellant has been convicted under Section 302 of the IPC and sentenced to undergo RI for life imprisonment with fine of Rs. 1000/-. 2. Case of the prosecution in brief is that Rajkumar (henceforth ‘the Appellant’) was already married person. Prior to 8-9 years, he married with Sarita Singh (henceforth ‘the Deceased’) and was residing with
Facts
his first wife along with the Deceased at his Village Neur. On 27/08/2020, one Indrapati came to the village of Devmani (brother of the Deceased) and informed him about the death of the Deceased. Subsequently, Devmani along with his mother, aunt and sister went to the village Neur and saw that the Deceased was lying on the cot. There were some marks on her neck and blood was on her mouth and cheek. When the father of the appellant was asked, he told them that on 26/08/2020 at about 6:00, the appellant and the Deceased after having the meal had gone to sleep to their room and at about 09:30, he came to know that the Deceased died. Subsequently, Devmani went to the police station – Kotadol to intimate about the sudden death of the Deceased, and the matter was taken into investigation. During investigation, Spot map was prepared. Panchnama of the body of the Deceased was prepared and the body was sent for postmortem. On being found the evidence against the appellant for committing the murder of the Deceased, crime No. 3 CRA No.1206 of 2024 57/2020 under Section 302 of the IPC was registered against the appellant. While interrogating the appellant, his memorandum statement was recorded and article were seized at his instance. Subsequently, a charge-sheet under Section 302 of the IPC was prepared against the appellant and submitted before the concerned Court. The charges were read over to the appellant, which he denied and claimed to be tried. 3. In order to bring home the offence, the prosecution has examined 16 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. 4. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 30/04/2024 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 5.
Legal Reasoning
facts and circumstances of a given case. This Court in para 21 of Yusuf case [(2011) 11 SCC 754 : (2011) 3 SCC (Cri) 620] while referring to Mohd. Azad v. State of W.B. [(2008) 15 SCC 449 : (2009) 3 SCC (Cri) 1082] and State v. Mahender Singh Dahiya [(2011), held as under:- “21. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. (Vide Mohd. Azad v. State of W.B and State v. Mahender Singh Dahiya)” 52. The reasonableness of the time gap is, therefore, of some significance. If the time gap is very large, then it is not only difficult but may even not be proper for the court to infer that the accused had been last seen alive with the deceased and the former, thus, was responsible for commission of the offence. The purpose of applying these principles, while keeping the time factor in mind, is to enable the court to examine that where the time of last seen together and the time when the deceased was found dead is short, it inevitably leads to the inference that the accused person was responsible for commission of the crime and the onus was on him 9 CRA No.1206 of 2024 to explain how the death occurred. 20. Therefore, this Court held that the appellant was last-seen and last- together with the Deceased just before the unnatural death of the Deceased, and as such, the burden to prove the fact that how the Deceased died was upon him, which he fails to explain. Even from the statement of the witnesses, it is apparent that the appellant used to suspect the character of the Deceased, therefore, there was motive for the appellant to commit such a heinous offence against her wife. 21. It is an admitted fact that the appellant and the deceased alone were in the house at the time of incident and the appellant being the husband of the deceased was under obligation to disclose the fact within his exclusive knowledge which he has failed to do, presumption arises of his complicity in the crime. In absence of any explanation by the appellant the principle under Section 106 of the Evidence Act would apply against the appellant specially when it is a case of house murder by the husband killing his wife. 22. In the matter of Suresh & Another Vs. State of Haryana {(2015) 2 SCC 227}, the Supreme Court has held that under Section 106 of the Evidence Act it is for the person concerned to prove any especial fact within his knowledge and if such especial fact is not disclosed, an adverse inference can be drawn. 23. Applying the well settled principles of law to the facts of the present case and considering the entire evidence available on record and the 10 CRA No.1206 of 2024 facts and circumstances of the case, it would be safe for this Court to hold that the appellant has committed murder of the deceased i.e. second wife of the appellant. 24. For the foregoing discussions, this Court is of the opinion that the prosecution has fully proved its case beyond reasonable doubts. Therefore, the conviction as awarded by the trial Court to the appellant is hereby upheld. 25. Accordingly, this Criminal Appeal is dismissed. It is stated that the appellant is in jail, he shall serve out the remaining sentence. 26. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also 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. Sd/- Sd/- (Bibhu Datta Guru) Judge (Ramesh Sinha) Chief Justice Rahul/Gowri
Arguments
Mr. Hemant Kumar Agrawal, learned counsel for the appellant submits that appellant has been falsely implicated in this case, he has not committed any offence as alleged against him. The conviction of the appellant is not based on any eye-witness. In fact, the appellant has been convicted on assumption and presumption. The prosecution has completely failed to prove its case beyond reasonable doubt. There are material contradictions and omissions in the statement/deposition of the prosecution witnesses, therefore, in absence of any cogent and 4 CRA No.1206 of 2024 clinching evidence against the appellant, the conviction of the appellant cannot be sustained. 6. Per Contra, Mr. Shailendra Sharma, learned Panel Lawyer appearing for the State opposes the submission of counsel for the appellant and would submit that there is sufficient evidence against the appellant and the trial Court has rightly appreciated the evidence in its true perspective, which does not require any interference. 7. We have heard learned counsel for the parties and perused the record with utmost circumspection. 8. After going through the records, statements and material available on record, it is undisputed that the appellant was already married and the Deceased was his second wife; the deceased was residing with the appellant at his village Neur; and the Deceased died in the house of the appellant. 9. The first and foremost question for consideration as to whether the death of deceased was homicidal in nature has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-33) proved by Dr. Marisha Singh (PW15), according to which, the cause of death was due to Antemortem Neck compression, mode of death was asphyxia and nature of death was homicidal, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 5 CRA No.1206 of 2024 10. The conviction of the appellant is based on the application of Section 106 of the Indian Evidence Act and on the statements of witnesses Devmani Singh (PW1), Lalmadhi (PW2), Urmila Singh (PW3), Sukhmanti Bai (PW4), Dev Singh (PW6), Darapati (PW7), Basanti Bai (PW9), Heera Bai (PW10) and Lalita Singh (PW11). 11. Devmani Singh (PW-1) in his statement has stated that the Deceased was his sister and the appellant is his brother-in-law. Both live in village Neur. He stated that on the date of the incident, he was in his house. Indrapati of village Neur came and told that your sister Sarita (Deceased) has died, at that time his mother Hirabai had gone to the forest. Subsequently, he, his mother, younger sister Urmila, all three reached at the Deceased house in village Neur and saw that the Deceased was lying on the cot, she had died, red, black marks of rope were visible on her neck, there was blood on the right cheek. He went to Kotadol police station and registered the information of untimely and accidental death vide Ex.P/1. This witness has also stated in his testimony that before the incident, the Deceased used to tell that if she talk to anyone, the appellant gets suspicious and beats her. Though, this witness has admitted in his cross-examination that the Deceased did not tell him this fact, instead she had told her parents, her mother had told him. 12. Indrapati (PW5) has deposed in his statement that on the date of incident, the appellant came to his house and informed that the Deceased has committed suicide by hanging herself. When, he along 6 CRA No.1206 of 2024 with other went to the house of the appellant, he saw that the Deceased was lying on the cot. Lalmani Singh (PW3) has deposed that on the date of incident, Indrapati (PW5) came to his house and told that the Deceased has died. Subsequently, his younger brother along with mother and sister went to the house of the appellant and saw that the Deceased was lying dead on the cot; there were marks on her neck and blood was also present over her mouth and cheek. 13. Likewise, Urmila Singh (PW3) has stated in her deposition and she has corroborated the statement of PW2 and PW1 and nothing has been elicit by the defence in her cross-examination. In cross-examination, this witness has categorically stated that the appellant used to suspect on the Deceased over her alleged relation with her ‘Jija’(brother-in- law). 14. Basanti Bai (PW9) has stated in her deposition that one week prior to the incident, her mother had brought back the Deceased for some illness. Subsequently, when the deceased has gone for treatment to Manendragarh, the appellant called the Deceased and suspected that she was roaming with her Jija. 15. From the above statements of PW1, PW2 and PW5, it is evident that they all have seen the Deceased lying dead on the cot, sustaining black marks of rope on her neck and there was blood on the right cheek. Further, from the statement of the Doctor, it is apparent that the death was homicidal in nature. 7 CRA No.1206 of 2024 16. Now, the question for consideration is as to whether Section 106 of the Indian Evidence Act would be applicable or not?. 17. At this stage, it would be appropriate to quote Section 106 of the Evidence Act, which 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." 18. Reverting to the facts of the present case, it is quite vivid that in para- 24 of the impugned judgment, the trial Court has recorded a finding on the basis of the Merg Intimation (Ex.P/1), wherein it has been mentioned that Heeralal, who is father of the appellant has stated that after having meal at about 6:00 PM, both the appellant and the Deceased had gone to their room and at about 09:30 PM, the appellant told him that the Deceased has died. Hence, it has been proved that the appellant was present at the relevant time at the place of occurrence and he has not given any satisfactory explanation in his statement recorded under Section 313 CrPC as to how and what circumstances the Deceased died. 19. The Supreme Court in the matter of Shyamal Ghosh v. State of W.B., (2012) 7 SCC 646 has held as under;- 50. Then, it is also contended and of course with some vehemence that where the prosecution is relying upon the last seen theory, it must essentially establish the time when the accused and 8 CRA No.1206 of 2024 deceased were last seen together as well as the time of the death of the deceased. If these two aspects are not established, the very application of the “last seen theory” would be impermissible and would create a major dent in the case of the prosecution. 51. Application of the “last seen theory” requires a possible link between the time when the person was last seen alive and the fact of the death of the deceased coming to light. There should be a reasonable proximity of time between these two events. This proposition of law does not admit of much excuse but what has to be seen is that this principle is to be applied depending upon the