High Court of Chhattisgarh
Case Details
1 2025:CGHC:13299-DB NAFR ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA Date: 2025.03.24 10:22:20 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1673 of 2024 Padman Khadiya S/o Hilo Khadiya, aged about 50 years R/o Village Vishwanathpali, Ploce Station Chakradhar Nagar, District Raigarh, Chhattisgarh. --- Appellant versus State of Chhattisgarh Through P.S. - Chakradhar Nagar, Raigarh, District Raigarh, Chhattisgarh. CRA No. 1682 of 2024 --- Respondent Nirakar Chouhan D/o Late Angad Ram Chouhan, aged about 59 years R/o Village Vishwanathpali, Police Station Chakradharnagar, District Raigarh, Chhattisgarh. ---Appellant Versus State of Chhattisgarh Through Station House Officer, Police Station Chakradharnagar, District Raigarh, Chhattisgarh. (Cause Title taken from Case Information System) --- Respondent ________________________________________________________ For Appellant in CRA 1673/2022 : Mr. Hamuman Prasad Agrawal, Advocate For Appellant in CRA 1682/2024 : Mr. Gurudev I. Sharan, Advocate For Respondent/State ________________________________________________________ Hon'ble Mr. Ramesh Sinha, Chief Justice : Mr. Sangharsh Pandey, G.A. Hon’ble M r. Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha, Chief Justice 20.03.2025 2 1. Since both the above-captioned appeals arise out of a common factual matrix and common judgment, this Court is disposing of both these appeals by a common judgment. 2. Both these Criminal Appeals have been preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) against the impugned judgment of conviction and order of sentence dated 13.08.2024 passed by the learned Additional Sessions Judge (F.T.C.) Raigarh, District- Raigarh (C.G.) in Sessions Trial No.77/2021, by which the appellants have been convicted under Section 302 read with Section 34 of IPC and sentenced to undergo life imprisonment and to pay fine of Rs.500/- each, in default of payment of fine, additional RI for six months. 3. The prosecution story, in brief, is that on 15.07.2021, accused Nirakar Chauhan went to Raigarh for his work on his Scooty No. CG 13 UE 1536. While returning home, he found the deceased/victim near Chakradharnagar State Bank at around 4.00 pm. He brought her to his house on his Scooty by talking about having sex with her. Later, at around 6.00 pm, he called his partner accused Padman Khadiya to his house. At around 8.30 pm, when the deceased/victim refused to let them have sex, both the accused strangled the deceased/victim with a muddy colored towel and killed her. After the death of the deceased/victim, accused Nirakar Chauhan informed the village sarpanch Mithilesh Kumar Nayak 3 over mobile phone that a woman's dead body was lying in his house. 4. Sarpanch Mithilesh Kumar Nayak and other people of the village went to the house of accused Nirakar Chauhan and saw that a dead body of a woman was lying in his house. A towel was tied around her neck and blood was oozing out of her nose. On the information of the incident given by Sarpanch Mithilesh Kumar Nayak, FIR No. 56/2021 was registered in Police Station- Chakradharnagar vide Ex.P.-01. The dead body was identified by Resham Lal Sarathi. Identification Panchnama is Ex.P.-05. Notice was given under Section 175 of the Code of Criminal Procedure to the witnesses/panchanas to remain present for the Panchnama of the dead body of the deceased/victim, Ex.P.-02. In the presence of witnesses/panchanas, Panchnama of the dead body of the deceased/victim was prepared vide Ex.P.-03. Later, the dead body was sent to Medical College / K.G. Hospital, Raigarh for conducting postmortem . The postmortem of the dead body was done by Dr.Rajesh B. Goswami (PW-13) vide Ex.P.-27 and following injuries :- (1) Contusion of size 3.5 x 3.0 cm, bluish in colour, present over face on left side, situated just above left angle of mandible and 1.0 cm in front of ear lobule. 4 (2) 03 small abrasions (0.3x0.2 to 0.2x0.1 cm in size), curvilinear in shape, reddish in colour, present at and just above left angle of mandible, vertically placed. (3) One abrasion of size 0.3x0.2 cm, curvilinear in shape, reddish in colour, present 2.0 cm below right angle of mandible, horizontally placed. (4) Contusion of size 9.0×6.5 cm, bluish in colour, present over fronto-temporai, fronto-parietal and parieto- temporal part of inner aspect of scalp on left side. (5) Contusion of size 7.0×6.0 cm, bluish in colour, present over frontal part of inner aspect of scalp on both side of midline. All injuries are ante-mortem in nature. Injury No. 2 & 3 caused by pointed objects. Injury No. 1, 4 & 5 caused by hard and blunt force trauma. He opined that cause of death was due to asphyxia as a result of ligature strangulation and it was homicidal in nature and the duration of death was within 8-24 hours since postmortem examination. 5. During the inquest, a visual map of the crime scene was prepared vide Ex.P.-04. The police issued notices under Section 160 of the Criminal Procedure Code to witnesses Ishwar and Manoj Sao to remain present during the investigation vide Ex.P.-12 and Ex.P.-17 5 respectively. In the presence of the said witnesses, the accused Nirakar Chauhan and Padman Khadiya were questioned and memorandums, Ex.P.-13 and Ex.P.-14 respectively, were prepared. On the basis memorandum statement of accused Nirakar Chauhan, an old black coloured Scooty No. CG 13 UE 13 1536 was seized from his house as per Ex.P.-15. A brown coloured piece of wood was recovered from the scene of crime as per Ex.P.- 11. Accused Padman Khadiya and Nirakar Chauhan were arrested as per arrest papers Ex.P.-32 and Ex.P.-33. Information regarding the arrest of accused Nirakar Chauhan and Padman Khadiya was given to their families as per Ex.P.-34 and Ex.P.-35 respectively. After the inquest, the rural complaint was registered at the spot vide
Facts
Ex.P.-29. The First Information Report Ex.P.-30 was registered at the police station. The information of which was sent to the Magistrate vide Ex.P.-31. 6. The duty certificate issued regarding sending the dead body for postmortem through lady constable Kasturi Rathia is Ex.P-28. After postmortem of the dead body, the viscera which was kept separately sealed for FSL examination by the doctor was brought to the police station by constable No. 465 and was seized as per seizure memo Ex.P-26. The notice issued by Halka Patwari Manish Singh Sidar for the presence of witnesses at the spot while preparing the site map is Ex.P-24. The site map prepared by him is Ex.P-06, Panchnama is Ex.P-07. The application given by the Halka Patwari regarding preparing the Nazri map and Panchnama 6 and providing it to the police station in-charge is Ex.P-25. After completing all the formalities, the chargesheet was presented in the court of Judicial Magistrate First Class, Raigarh. From where, after surrender, it was handed over to the Court of Sessions Judge, Raigarh. Later, the case was received by the Court of Additional Sessions Judge (FTC), Raigarh for trial. 7. When the accused were narrated and explained the offences under Sections 376, 376 (d) 302/34 of the Indian Penal Code, 1860, they denied the offence and claimed trial. In order to prove its case, the prosecution has examined as many as 17 prosecution witnesses and exhibited 45 documents. When the accused were examined by preparing a questionnaire regarding the facts mentioned in the statements of prosecution witnesses under Section 313 Cr.P.C., the accused stated that they were innocent and that they were being implicated on false grounds and no witness was examined in their defence. 8. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 13.08.2024, acquitted the accused/appellants from the charges of Section 376, 376 (d) of IPC, however, convicted and sentenced the appellants under Section 302 read with Section 34 of IPC in the manner mentioned in the opening paragraph of this judgment, against which these appeals under Section 374(2) of the CrPC have been preferred calling in question the impugned judgment. 9.
Legal Reasoning
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. 32. The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with 3 AIR 1956 SC 460 19 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. 33. The witness Mithilesh Kumar, who is the Sarpanch of village Vishwanathpali, who is the informant of the incident, has stated that about 5-6 months before the date of his statement i.e. 21.01.2022, at 9-9.30 pm, Balkrishna of the village called him on his mobile and told him that the accused Niraakar Chauhan wants to talk. After this, the accused Niraakar told him on the phone that there is a dead body lying in his house. He asked the accused whose dead body it is, then the accused said that come and see it himself, then he went to the house of accused Niraakar Chauhan along with Balkrishna Patel, Rohit Patel, Rakshapal Sidar, Manoj Sao, Sanyasi Gupta, Ishwar Kisan and other persons of the village and when the door of the house was opened, the dead body of a woman was lying inside. After this, he called the police station Chakradharnagar and informed them. This witness also says that some time after this call, the police of Chakradharnagar came to the house of accused Niraakar Chauhan and when they turned the dead body over, blood was coming out of the nose of the deceased and a towel was tied tightly around her neck and a piece of towel was lying beside the body. When the police asked the accused Niraakar Chauhan about the dead body, he said that 4 AIR 1974 SC 778 20 he had no information. When these people also questioned the accused Niraakar, he did not give them any information about the dead body. After that, the police took the accused Niraakar Chauhan and Padman Khadiya with them to the police station. At that time, the accused was drunk. 34. This witness also says that on enquiring from the neighbours on the second day of the incident, he got information that the accused had brought the said woman with him. On the basis of the information given by him, the police had registered Merg Intimation Ex.P-01. This witness was declared hostile by the prosecution officer and on being asked indicative questions, he accepted that on being asked, the accused Niraakar Chauhan had told him that the deceased was his sister-in-law. He also accepted that when the husband of the deceased came to the village, on enquiring, it was found out that the deceased Savitri was his wife. In paragraph 8 of the cross-examination, this witness has admitted that the mother, wife and daughter of the accused Niraakar Chauhan live in his house. The witness himself said that on the day of the incident, his wife and daughter were not at home, only his mother was at home. In the same paragraph, he has also admitted that there is a distance of 4-5 hundred meters between the house of Balkrishna Patel and the house of accused Niraakar Chauhan. When accused Nirakar informed him over phone, he was near Balkrishna's house and at that time he was drunk. It is clear from the above confession of 21 this witness that after the incident, accused Nirakar Chauhan went to Balkrishna Patel's house of the village and said that he wants to talk to the Sarpanch, then Balkrishna called Sarpanch Mithilesh Kumar and told him that accused Nirakar Chauhan wants to talk to him. After that, accused Nirakar Chauhan told him over phone that there was a dead body lying at home. This witness has admitted in cross-examination paragraph-09 that when these people went to the house of Niraakar Chauhan, at that time his mother was at home, but the Investigating Officer of the case has not made the mother of accused Niraakar Chauhan a witness nor has he given any reason for not making her a witness, whereas the mother of accused Niraakar Chauhan could have been an important eyewitness for resolving the case. 35. In paragraph 11 of the cross-examination, this witness has admitted that when they reached the spot, they did not see any sign of resistance, struggle or dragging on the ground. He himself says that buckets and cots were lying here and there in his house and a bottle of liquor was found there, but just because there were no marks of resistance, struggle or dragging on the ground at the scene of crime, it cannot be said that the deceased did not die by strangulation because this witness has clearly stated during his examination-in-chief that when they reached the scene of crime, a towel was tied tightly around the neck of the deceased and a piece of towel was lying beside the body and blood was coming out of the nose of the deceased, which indicates that the 22 deceased was killed by strangulation with a towel. In paragraph 14 of the cross-examination, this witness has admitted that the body of the deceased was not inside the house of accused Niraakar Chauhan but was in the shade. In the same paragraph, he has refuted the suggestion that the body of the deceased was in the open area of the house of accused Niraakar Chauhan where anyone could come. Hence, it is also clear that the place where the body of the deceased was lying is not an open place and no one can come there easily. In paragraph 16 of the cross- examination, this witness has denied the suggestion that his relations with accused Niraakar Chauhan are not good. Accused Niraakar Chauhan has also not presented any evidence that his relations with him are not good. Hence, there is no reason to disbelieve the statements of witness Mithilesh Kumar. 36. In paragraph 17 of the cross-examination, this witness has admitted that when they went to the house of accused Niraakar Chauhan on the day of the incident, accused Padman Khadiya was not present there. It was heard that on the day of the incident, accused Padman Khadiya had gone to catch fish. Then he himself says that but accused Niraakar Chauhan had told that accused Padman Khadiya was present at the time of the incident. The above statement of this witness is worth consideration as it is according to the statement of co-accused Niraakar Chauhan. 37. Witness Sanyasi Gupta (PW-02) has stated that the incident is of the year 2021. This witness says that he does not remember the 23 month and date of the incident and according to this witness, he was going towards the locality at 2-2.30 pm when the Sarpanch i.e. Mithilesh Kumar had told that a woman in the village has been killed in the house of accused Niraakar Chauhan. This is the only information he has about the incident. This witness was declared hostile by the prosecution and when asked suggestive questions, he has denied the suggestion that on 15.07.2021 at 9.30 to 10.00 pm, the Sarpanch of the village Mithilesh Nayak had told that a dead body of woman was lying in the house of the Kotwar of the village i.e. accused Niraakar Chauhan, let's go to see it. Then he went to the house of accused Niraakar Chauhan along with Sarpanch and other people of the village and saw that a 40-45 years old woman was lying on her stomach in the hall of the house of accused Niraakar Chauhan and a dirty colored towel was tied around her neck. Thus, this witness has been declared hostile and even on being asked indicative questions, he denied that he had gone to the house of accused Niraakar Chauhan along with Sarpanch Mithilesh Nayak and other people of the village and then he had seen the dead body of a woman in the hall (Parchhi) of his house. But this witness has told that Sarpanch Mithilesh Nayak had told him that a woman had been murdered in the house of accused Niraakar Chauhan. 38. Witness Smt. Chandrama Sidar (PW-03) has also been declared hostile. But this witness, on being declared hostile by the prosecution officer and being asked suggestive questions, has 24 admitted that on the night of 15.07.2021 around 9.00-10.00 pm, the village sarpanch Mithlesh Nayak had called on her husband's mobile and told him that a woman was lying dead at the house of the village Kotwar accused Niraakar Chauhan. When she went to the house of accused Niraakar Chauhan to see the dead body the next day, she saw that the deceased was lying unconscious. But she has denied the suggestion that the towel was tied tightly around the neck of the deceased and blood was lying on the ground near the dead body and a piece of towel was lying near the dead body. Thus, even though this witness has denied the towel being tied around the neck of the deceased and blood being on the ground and a piece of towel lying near the dead body, but this witness has not denied the fact that she had not seen the dead body of the deceased in the house of accused Niraakar Chauhan. 39. Witness Shyamlal Khadia (PW-04) states that at 3.00 o'clock on the night of the incident, the village road was crowded, then he came out of his house and asked the people present there, then they told him that accused Padman and Niraakar had brought a girl and she had been murdered. In the morning, when he was returning from the pond, the police told him to go to the house of accused Niraakar, then he went to the house of accused Niraakar and saw the dead body of the deceased. This witness was declared hostile by the prosecution officer and when asked suggestive questions, he said that the suggestion was correct that 25 blood had come out of the nose of the deceased and a towel was tied around her neck and a piece of towel was lying beside her. In this way, this witness also told that he went to the house of accused Niraakar Chauhan the next day and saw the dead body of the woman. 40. Witness Ishwar Prasad Kisan (PW-05) has stated that on the night of the incident at 8.00-8.30 pm, the village head Mithilesh Nayak had told him that there was a dead body lying in the house of the village Kotwar Niraakar Chauhan, let's go and see it. Then this head Mithilesh and other Panchs of the village went to the house of accused Niraakar Chauhan and saw that the dead body of a woman was lying on the ground in a flat condition. When the police came and turned the body over, blood was coming out of the nose. This witness was declared hostile by the prosecution officer and when asked suggestive questions, he accepted that when he saw the dead body, there was a muddy colored towel around the neck of the dead body. In cross-examination, this witness has accepted that he does not know from where the dead body lying in the house of accused Niraakar was brought and how the body came there. But this witness has clearly stated during his judicial examination that when these people went to the house of accused Niraakar Chauhan, they saw the dead body of the woman. The above statement of this witness remained unbroken in cross-examination. 41. Witness Manoj Sahu (PW-06) has also made a statement to the 26 same effect, therefore, the statements of this witness is not being described in detail. 42. Witness Balkrishna Patel (PW-07) has stated that on the date of incident she was in his house at 9 pm when Kotwar accused Niraakar Chauhan came to his house and told him that there was a dead body of a woman lying in his house, let's go and see. Then he asked accused Niraakar Chauhan whether he had told the Sarpanch about the dead body or not. Then the accused told him that he was the first one to tell him about the dead body. After this, he told the Sarpanch about finding the dead body from his mobile. Village Sarpanch Mithilesh Nayak, Rohit Patel, Janak Khadia, Sanyasi Gupta, after the people came, went to the house of accused Niraakar Chauhan with them and saw that the dead body of a woman was lying on the ground in the house of accused Niraakar Chauhan, a muddy colored towel was wrapped tightly twice around her neck. A small towel was lying there and blood was coming out of the woman's nose. This witness also says that at that time accused Niraakar Chauhan had told the Sarpanch that accused Padman Khadiya was also at the scene of the incident. Sarpanch Mithilesh Nayak had informed the police about the incident, then the policemen came to the spot. This witness was declared hostile by the prosecution officer and when asked suggestive questions, he admitted that when he returned from the field the next day, he came to know that the deceased's husband had also come with the police and he had identified the body as 27 his wife. He also admitted that he later came to know that the accused Niraakar Chauhan had brought the deceased from Raigarh on a scooty on 14.07.2021. In cross-examination, this witness has admitted that he does not know where the deceased died and from where the dead body was brought. But it is clear that he had seen the dead body of a woman in the house of accused Niraakar Chauhan. In the same paragraph, he has admitted that the door of the room in which the dead body was kept was not locked but has denied the suggestion that the dead body was in an open space. Hence, it is also clear that no one can easily come and go to the place in the house of the accused where the dead body was kept. This witness has also accepted that accused Niraakar Chauhan's wife, mother and children live in his house. He himself said that at that time accused Niraakar's wife and children were not there. He has also accepted that when he reached the spot, accused Padman Khadiya was not there. It is also clear from the statement of the witness that on the night of the incident, the wife and children of accused Niraakar Chauhan were not at home and when they reached the house of accused Niraakar Chauhan, accused Padman Khadiya was also not there. 43. Witness Smt. Nuvadai (PW-09), who is a member of the Gram Panchayat in village Vishwanathpali, has stated that the village Sarpanch had informed her about the dead body of a woman lying in the house of Kotwar Niraakar Chauhan, then the next day when she went to Kotwar Niraakar's house, she saw that the dead body 28 of a woman was lying on her back there. 44. Witness Janak Ram (PW-12) also stated that on the date of the incident, at about 9.00 pm, Sarpanch Mithilesh Nayak told him that a woman has been murdered at Kotwar Niraakar's house, let's go and see. Then he went to Kotwar Niraakar Chauhan's house along with Sarpanch and other people of the village and saw that a woman was lying in a collapsed condition under the shade of accused Niraakar Chauhan's house. The deceased had a towel tied around her neck. The police came to the spot when the Sarpanch informed the police. The policemen made a Panchnama of the dead body at the spot. In cross-examination, this witness has admitted that he does not know from where the said dead body came. He has also admitted that when they went to the house of Kotwar Niraakar, the accused Padman Khadiya was not there. Thus, this witness has also stated that when they went to the house of accused Niraakar Chauhan, a dead body of a woman was lying in the shade. 45. Witness Resham Lal Sarathi (PW-17) has stated that when the police informed him about the incident, he went to Chakradharnagar police station. The police took him along in their car to Vishwanathpali. When he reached Vishwanathpali, he saw that the dead body of his wife Savitri was lying in the house of a person named Niraakar Chauhan. In paragraphs 11 and 12 of the cross-examination, this witness has admitted that his wife had gone somewhere from home two days before the incident. He had 29 not lodged any report regarding his wife going somewhere from home. In paragraph 13, this witness has admitted that he does not know whose house it was in which the dead body of the deceased was lying. Thus, it is clear from the statement of this witness that his wife was not in his house on the day of the incident. 46. Mithilesh Nayak (PW-01) has also stated that when the police turned the dead body over, blood was coming out of the nose of the deceased and a towel was tied tightly around her neck and a piece of towel was lying beside the body. Witnesses Smt. Chandrama Sidar (PW-03), Shyamlal Khadia (PW-04), Ishwar Prasad Kisan (PW-05), Balkrishna Patel (PW-07) and Janak Ram (PW-12) have stated that when they went to the house of accused Niraakar Chauhan along with Sarpanch Mithilesh Nayak, they found the dead body of a woman lying in his house and blood was coming out of her nose, a towel was tied around her neck and a piece of towel was lying near the body. Another witness of the case, Smt. Nuvadai (PW-09) has also stated that when they went to the house of accused Niraakar Chauhan, they saw the dead body of a woman lying there. Witness Sanyasi Gupta (PW-02) has also stated that Sarpanch Mithilesh Nayak had told him about the murder of a woman in the house of accused Niraakar Chauhan. 47. Cross-examination of the above witnesses could not be contradicted during the hearing. Although in the statements of the above witnesses there is a little contradiction regarding the towel 30 being tied tightly around the neck of the deceased, blood coming out of her nose and a piece of towel lying near the dead body, but the said little contradiction does not have any adverse effect on the prosecution. 48. Witnesses Mithilesh Nayak (PW-01) and Balkrishna Patel (PW- 07) during cross-examination have denied the suggestion that the place where the dead body of the woman was lying in the house of accused Niraakar Chauhan is an open place. According to the above witnesses, the wife and daughter of accused Niraakar Chauhan were also not at home on the day of the incident. It is also not stated that accused Niraakar Chauhan had any enmity or rivalry with anyone. No other person was seen coming or going to the house of accused Niraakar Chauhan even on the night of the incident. In such a situation, the place of incident is the house of accused Niraakar Chauhan and no one has seen any other person coming or going to the house of the accused on the day of the incident. In such a situation, there is no possibility that any other person would have brought the dead body of the said woman and kept it in the house of accused Niraakar Chauhan. 49. No explanation has been given by the accused Niraakar Chauhan as to how the dead body of the said woman came to his house. Therefore, since the accused Niraakar Chauhan did not give any explanation as to how the dead body of the said woman came to his house, it will be presumed against him that he has murdered the said woman. 31 50. So, now it remains to be seen whether accused Padman Khadiya was also involved in causing the incident? 51. In this regard, witness Mithilesh Nayak (PW-01) has admitted in paragraph 17 of his cross-examination that when they reached the scene of incident, accused Padman Khadiya was not present there, but in the same paragraph he has stated that he had heard that on the day of the incident, accused Padman Khadiya had gone fishing, then he himself says that accused Niraakar Chauhan had told accused Padman Khadiya to be present at the time of the incident. Witness Balkrishna Patel (PW-07) has also stated that when they had gone to the house of accused Niraakar Chauhan, then accused Niraakar Chauhan had told the Sarpanch i.e. Mithilesh Nayak that accused Padman Khadiya was also present at the scene of incident. 52.
Arguments
Mr. Hanuman Prasad Agrawal, learned counsel for appellant – 7 Padman Khadiya in CRA No. 1673 of 2024 vehemently argued that the conviction of the appellant is totally erroneous and against the evidence presented in the case. He further submitted that accused Padman Khadiya has been falsely implicated in the present case only on the basis of memorandum statement of co- accused Nirakar Chouhan, who is the main accused. The learned trial Court has failed to see that there are lot of omission and contradiction in the statement of prosecution witnesses meanwhile no one has seen the incident nor disclosed that at the time of incident the appellant Padman Khadiya was in the house of co-accused Nirakar Chouhan. He also submitted that the dead body of the deceased has been recovered from inside the house of co-accused Nirakar meanwhile the mother of co-accused Nirakar and neighbours have not been examined by the prosecution as prosecution witness nor there is any evidence regarding his active participation in the commission of offence, the prosecution has not proved the case against the present appellant beyond all the reasonable doubt. Hence, the appellant is entitled for the benefit of doubt. 10. Mr. Gurudev I. Sharma, learned counsel for appellant – Nirakar Chouhan in CRA No. 1682 of 2024 vehemently argued that the learned trial Court has not properly appreciated the facts and evidence available on record while passing the impugned order. He further argued that the learned trial Court has failed to 8 appreciate that the incident took place in a grave and sudden provocation and accused had no intention or motive to kill the deceased. There are material contradiction and omission in the case diary statement and court deposition of prosecution witnesses, which cannot be relied upon and the same cannot be made basis for conviction of the appellant. He also submitted that looking to the evidence of the instant case, at most the appellant can be convicted under Section 304 Part-II of IPC as there was no mens rea, no intention, no motive to kill the victim and under provocation all of a sudden the incident occurred resulting death of the victim. 11. On the other hand, learned State counsel supports the impugned judgment and submitted that as per case of the prosecution the appellants / accused have caused committed murder of the deceased by throttling her neck and the prosecution has proved its case beyond reasonable doubts by way of evidence. He further submits that looking to the seriousness of crime, the appellants are not at all entitled for any sympathy by this Court, therefore, the appeal deserves to be dismissed. 12. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 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. 9 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. Rajesh B. Goswami (PW-13), who has conducted postmortem over the body of deceased and given his report vide Ex.P-27, whereby he has found as many as five injuries as mentioned in the preceding paragraph and opined that all injuries are ante-mortem in nature. Injury Nos. 2 & 3 were caused by pointed objects, whereas injury Nos. 1, 4 & 5 were caused by hard and blunt force trauma. He opined that the death was due to asphyxia as a result of ligature strangulation and it was homicidal in nature and the duration of death was within 8-24 hours since postmortem examination. 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 appellants. We hereby affirm the said finding. 16. It is the case of no direct evidence, rather conviction is based on circumstantial evidence. 17. We may also make a reference to a decision of the Supreme Court in C. Chenga Reddy and Ors. v. State of A.P., (1996) 10 SCC 193, wherein it has been observed thus: 10 “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....”. 18. In Padala Veera Reddy v. State of A.P. and Ors., AIR 1990 SC 79, it was laid down by the Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 19. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 11 1104), it was pointed out by the Supreme Court that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 20. Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted”. 12 21. Five golden principles which constitute Panchseel of proof of case based on circumstantial evidence have been laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 which state as under :- “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 22. The Supreme Court in the matter of Suresh and Another v State of Haryana, (2018) 18 SCC 654 has observed that cases of circumstantial evidence, the courts are called upon to make inferences from the available evidence, which may lead to the accused's guilt. The court at paras 41 and 42 has observed thus : 13 “41. The aforesaid tests are aptly referred as Panchsheel of proof in Circumstantial Cases (refer to Prakash v. State of Rajasthan). The expectation is that the prosecution case should reflect careful portrayal of the factual circumstances and inferences thereof and their compatibility with a singular hypothesis wherein all the intermediate facts and the case itself are proved beyond reasonable doubt. 42. Circumstantial evidence are those facts, which the court may infer further. There is a stark contrast between direct evidence and circumstantial evidence. In cases of circumstantial evidence, the courts are called upon to make inferences from the available evidence, which may lead to the accused's guilt. In majority of cases, the inference of guilt is usually drawn by establishing the case from its initiation to the point of commission wherein each factual link is ultimately based on evidence of a fact or an inference thereof. Therefore, the courts have to identify the facts in the first place so as to fit the case within the parameters of “chain link theory” and then see whether the case is made out beyond reasonable doubt. In India we have for a long time followed the “chain link theory” since Hanumant case, which of course needs to be followed herein also.” 23. The Supreme Court in the matter of Sailendra Rajdev Pasvan and Others vs. State of Gujarat Etc., AIR 2020 SC 180 observed that in a case of circumstantial evidence, law postulates two-fold requirements. Firstly, that every link in the chain of circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt 14 and secondly, all the circumstances must be consistent pointing out only towards the guilt of the accused. We need not burden this judgment by referring to other judgments as the above principles have been consistently followed and approved by this Court time and again. 24. In the present case, the prosecution has proved the following circumstantial evidence against the appellants :- (i) The prosecution has proved that the deceased was brought by accused Nirakar Chouhan at his house for having sex with her. (ii) The body of the deceased was found inside the house accused Nirakar Chouhan. (iii) Recovery of towel with ligature material over it vide Ex.P-26. (vi) Motive behind causing the incident was proved by the prosecution. (vii) On the basis of memorandum statement of the accused (Ex.P-13), at his instance scooty was vide Seizure memo Ex.P-15. (viii) Dr. Rajesh B. Goswami (PW-13) who conducted postmortem has opined that cause of death was due to asphyxia as a result of ligature strangulation and it was homicidal in nature. 25. The next question for consideration would be, whether the trial 15 Court has rightly held that the appellants are author of the crime by relying upon the following circumstances:- (i) Homicidal death was proved by the prosecution as per postmortem report (Ex.P-27) of Dr. Rajesh B. Goswami (PW-13), who conducted postmortem. (ii) As per the case of the prosecution, the fact of death of deceased was within the knowledge of the appellants as the dead body was found inside the house of accused Nirakar Chouhan, wherein co-accused Padman Khadiya was also present at the time of incident, however, there was no any explanation given by the appellants in there statement under Section 313 of the Cr.P.C. Thus, burden of proof was on the appellants to explain such circumstance, which they failed to explain. 26. Now, the question would be, whether Section 106 of the Indian Evidence Act, 1872 (for short, the Evidence Act) would be applicable or not? 27. 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.” 28. 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 16 101, 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 persons were in such a position that they could have special knowledge of the fact concerned. 29. In the matter of Shambhu Nath Mehra v. The State of Ajmer1, their Lordships of the 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 1 AIR 1956 SC 404 17 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.” 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. 30. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval 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 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 2 (2021) 10 SCC 725 18 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.” 31. 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 Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a
Decision
In view of the above discussion, this Court is of the considered opinion that accused Nirakar Chouhan had brought the deceased / victim to his house on his Scooty by talking about having sex with her and when the deceased/victim refused to let him have sex, he strangled the deceased/victim with a muddy colored towel and killed her and there is no evidence that accused Padman Khadiya was also present at the time of incident and he has accompanied the co-accused in committing the said incident. 53. So far as the allegation against accused Padman Khadiya is concerned, there is no evidence regarding his active participation 32 in the commission of offence, the prosecution has not proved the case against him beyond all the reasonable doubt. Thus, we are of the considered opinion that benefit of doubt ought to have been given to accused/appellant Padman Khadiya. 54. For the foregoing reasons, CRA No. 1673 of 2024 filed on behalf of appellant- Padman Khadiya is allowed and his conviction & sentences are hereby set aside. 55. The appellant Padman Khadiya is reported to be in jail. He be released forthwith if not required in any other case. Keeping in view the provisions of Section 437-A CrPC (now Section 481 of the BNSS), appellant- Padman Khadiya is directed to furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs. 25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 56. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt against accused/appellant – Nirakar Chouhan that he had brought the deceased / victim to his house on his Scooty by talking about having sex with her and when the deceased/victim refused to let him have sex, he strangled the 33 deceased/victim with a muddy colored towel and killed her and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellant – Nirankar Chouhan. 57. Accordingly, the CRA No. 1682 of 2024 filed on behalf of accused /appellant Nirakar Chouhan, being devoid of merit, is liable to be and is hereby dismissed. 58. The appellant Nirakar Chouhan is reported to be in jail. He shall serve the remaining period of jail sentence as has been awarded to him by the learned trial Court. 59. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant Nirakar Chouhan 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. 60. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge Sd/- (Ramesh Sinha) Chief Justice Chandra