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2026:CGHC:22717-DB

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Reserved on 24-04-2026

Delivered on 14-05-2026

CRA No. 1548 of 2016

{Arising out of judgment dated 29-11-2016 passed by the Additional

Sessions Judge, Bhatapara, District Baloda Bazar (CG) in Sessions Trial

No.H-22/15)

Sanjay Kumar Dhruv @ Bablu @ Sanju S/o Ghanshyam Prasad Dhruv

Aged About 19 Years R/o Village Kuchi, Out Post Gidhpuri, Police

Station Palari, District Baloda Bazar, Chhattisgarh., Chhattisgarh

... Appellant

versus

State of Chhattisgarh Through Police Station Bhatapara Rural, District

Baloda Bazar, Chattisgarh.

... Respondent

For appellant. :Mr. Adil Minhaj, Advocate

For Respondent/State :Mr. Rishiraj Pithwa, Dy. Govt. Advocate

Corrom: Hon'ble Shri Sanjay S. Agrawal &

Hon'ble Shri Narendra Kumar Vyas, JJ.

C A V Judgment

Per Narendra Kumar Vyas, J.

1.This criminal appeal is preferred by the appellant under Section 374(2)

of the Cr.P.C. against the impugned judgment of conviction and order

of sentence dated 29-11-2016 passed by the learned Additional

Sessions Judge, Bhatapara, District Baloda Bazar, in Sessions Trial

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No. H-22/15 by which the appellant has been convicted under Section

302 of the IPC and sentenced to undergo imprisonment for life & pay

fine of ₹ 1,000/-, in default of payment of fine amount to undergo

additional rigorous imprisonment for three months.

2.Case of the prosecution, in brief, is that as per information given by

Anand Kumar Dhruv with Neelkamal Dhruv, Dehati Merg intimation

under Section 174 (Ex.P/9) was recorded by the Police Station,

Bhatapara (Rural), District Baloda Bazar on 2-6-2015 alleging that in

the evening on the fateful day, the appellant Sanjay Kumar Dhruv came

to village Tonataar and called the deceased Dushyant Kumar Dhruv

over mobile phone informing that he had to discuss some matter with

him and took him to Arjuni Khaar. It is also alleged that the deceased

was accompanied by Neelkamal Dhruv and after sometime, the

appellant Sanjay Kumar Dhruv started quarreling with him on the

pretext that there is a love affair between the deceased Dhyushant

Kumar Dhruv and his sister Seema Dhruv (PW/9), despite repeated

warnings, he did not stop to talk to his sister over mobile phone which

has caused dispute between the deceased and the appellant.

Neelkamal Dhruv (PW/4) seeing their dispute came back and informed

Anand Kumar Dhruv (PW/3) about on going dispute between them. It

has also been alleged that when they reached the place of occurrence,

Dushyant Kumar Dhruv was seen lying dead in the field and Sanjay

Kumar Dhruv was seen crushing Dushyant Kumar's face by stone. It

has also been alleged that the appellant seeing them got up and

started running, but Neelkamal caught hold him. However, the

appellant hit him on the head with a stone, injured, bit him and also cut

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the index finger of his right hand with his teeth to escape himself, but

he could not succeed in escaping. Upon arrival of other villagers and

examining the body of the deceased Dushyant Kumar Dhruv in the

light of a mobile phone, it was found that the accused Sanjay Kumar

Dhruv had inflicted a deep cut on the front of his neck with a blade,

inflicted deep scratches on his face, stomach with a screwdriver and

crushed his neck with a stone due to which Dushyant Kumar Dhruv

died at the spot around 8:00 pm. It is also alleged that near the dead

body, blood stains, blade, iron screw driver and punch cutter were

found. On the basis of Dehati Merg Intimation, dehati nalsi was

registered (Ex.P/10) and on the basis of dehati nalsi, FIR bearing

Crime No. 135/2015 (Ex.P/35) was registered before the Police

Station- Bhatapara (Rural) District Baloda Bazar for commission of

offence under Section 302 of IPC.

3.Statements of witnesses were recorded under Section 161 of the CrPC

and after usual investigation, the appellant was charge-sheeted for

offence punishable under Section 302 of the IPC and charge-sheet

was submitted before the Chief Judicial Magistrate, Bhatapara who

committal the trial to the learned Additional Sessions Judge,

Bhatapara, for hearing and disposal of the case in accordance with

law.

4.The prosecution, in order to prove the offence against the appellant,

examined as many as 16 witnesses namely Shekhar Dhruv (PW/1),

Vyasnarayan (PW/2), Anand Kumar Dhruv (PW/3), Neelkamal Dhruv

(PW/4), Sewakram Dhruv (PW/5), Prashhant Kumar Dhruv (PW/6),

Dr. Ajay Kumar Gupta (PW/7), Rukmani Bai (PW/8), Seema Dhruv

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(PW/9), Dr. R.K. Maheshwari (PW/10), Santoshi Dhruv (PW/11), Yugal

Kishore Verma, (PW/12), Ravi Shankar Kewart (PW/13), M.L. Tiwari

(PW/14), P.L. Nautiyall (PW/15), Gangaram Yadav (PW/16) and

exhibited documents (Ex.P/1 to P/35).

5.The accused pleads no guilty and false implication. The accused was

examined under Section 313 of the Cr.P.C. wherein he has stated that

on the date of incident, he had gone to Bhatapara to meet his relatives,

when he was returning towards Arjuni Khar then 20 – 25 persons made

attempt to stop his motor-cycle and when he tried to drive the

motorcycle from corner of the road then the mob caught hold of him by

his collar, then he fell down, thereafter the rider of the motor cycle fled

away, some people assaulted him, handed over to Police Station and

without any inquiry, he was arrested.

6.The trial Court after appreciating oral and documentary evidence on

record, convicted the appellant for commission of offence under

Section 302 of the IPC for the period as detailed above.

7.Being aggrieved with the aforesaid judgment, the appellant has

preferred this appeal.

8.Mr. Adil Minhaj, learned counsel appearing for the appellant, while

questioning the legality and propriety of the impugned judgment would

submit that the alleged eye witnesses Anand Kumar Dhruv (PW/3) and

Neelkamal Dhruv (PW/4) have not supported the case of the

prosecution and the chain of circumstantial evidence is not completed,

yet the trial Court has convicted the appellant for the alleged offence.

He would further submitted that the prosecution has not seized any

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weapon from possession of the appellant which has been used in

commission of offence, there are contradictions and omissions in the

statements of the witnesses, thus he would submit that the finding of

the learned trial Court suffers from perversity or illegality. He would

further submit that from the evidence tendered by the prosecution, the

recovery of incriminating material or disclosure of any fact have not

been proved, therefore, the conviction of the appellant for the alleged

offence is improper and erroneous. He would next submit that the

prosecution could not produce any credible witness or evidence

against the appellant as required by law for convicting him for the

offence under Section 302 of IPC. Thus, the impugned judgment

suffers from material illegality and deserves to be set aside.

9.Per contra, Mr. Rishiraj Pithwa, learned Deputy Govt. Advocate

appearing for the State/respondent supporting the impugned judgment

would submit that the prosecution has been able to bring home the

offence against the appellant beyond reasonable doubt. He would

further submit that though the eye witnesses Anand Kumar Dhruw

(PW/3) and Neelkamal Dhruv (PW/4) have turned hostile still their

evidence cannot be wiped out and the prosecution witnesses have

supported the case of the prosecution, the learned trial Court on

appreciation of evidence and material on record has rightly convicted

the accused. It has been further submitted that the learned trial Court

has rightly recorded its finding that the accused has taken a defence

that when he was returning from his relatives’ house at Bhatapara, he

was caught hold by people but he has not been able to prove the

defence taken by him by credible evidence as he has not examined

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any witness to substantiate this defence. He would further submit that

the learned trial Court has rightly recorded the finding at paragraph 45

that the accused was caught hold at the place of occurrence but the

accused failed to explain that in what circumstances he was found in

the place of occurrence though this fact was within his knowledge and

burden of proving fact which is within specific knowledge of the

accused. He would further submit that the learned trial Court has

recorded its finding that there was blood stain on the body and cloth of

the accused but no explanation has been given. Similarly blood stain

was found in the shirt, shoes, towel of the accused which is normally is

not possible unless the accused is involved in the commission of the

offence. Thus, the finding recorded by the learned trial Court does not

suffer from any perversity or illegality warranting any interference by

this Court, therefore, the appeal deserves to be dismissed.

10.We have heard learned counsel for the parties, considered their rival

submissions made herein-above and have also gone through the

record with utmost circumspection.

11.From the submissions made by the parties, the Point emerged for

determination by this Court is:-

“Whether the conviction of the appellant for commission of the

offence under Section 302 of the Cr.P.C. is sustainable or not?”

12.From the evidence brought on record, particularly postmortem report

(Ex.P-12) and evidence of Dr. A.K. Gupta (PW/7), it is quite vivid that

the death of the deceased was homicidal in nature as such the finding

recorded by the trial Court regarding death of the deceased is

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homicidal does not suffer from perversity or illegality warranting

interference by this Court and accordingly, it is affirmed by this Court

that the death of the deceased was homicidal in nature.

13.To appreciate the point emerged for determination by this Court, it is

expedient for us to go through the evidence adduced by the

prosecution meticulously particularly the testimony of Anand Kumar

Dhruv (PW/3) and Neelkamal Dhruv (PW/4), who are eye witnesses to

the incident and Vyas Narayan (PW/2) as the conviction of the

appellant is primarily on the basis of these witnesses.

14.Vyas Narayan (PW/2) in his examination in chief has stated that Anand

Dhruw (PW/3) and Neelkamal Dhruw (PW/4) have informed him that

the appellant has murdered Dushyant Kumar but why he has

murdered, the reason has not been told to him by them. The witness

has also stated that which substance was found near the place of

occurrence has not been seen by him due to dark. He has further

stated that no proceeding for Naksha Panchayat was carried before

him and also stated that before him on 03.06.2015, no seizure was

made by the Police. The said witness was declared hostile by the

prosecution and thereafter he was cross-examined by the prosecution

wherein he has stated that Neelkamal and Anand told him that the

appellant has killed the Dushyant as he was annoyed because of love

affair between the deceased and his sister and also admitted that

Anand and Neelkamal told him that the appellant has killed Dushyant

by cutting in front of his neck through blade and screwdriver and also

admitted that they have told about seeing the incident of killing by the

appellant. He has also admitted that in the panchnama the Police have

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not taken his signature at the place of occurrence. He also denied

about the seizure of mobile phone or shirts and two pieces of stone

which consists of blood stain, seizure of soil containing blood, without

blood, steel blade and screwdriver containing blood stain by the Police

but in paragraph 12, he has admitted about the seizure of full shirt

containing blood stain, shoes containing blood stain and towel

containing blood stain through the seizure memo (Ex. P/4). The said

witness in the cross-examination has admitted that the deceased never

informed him about the love affair with Seema (PW/9) and also

admitted that at the place of occurrence where there is no

arrangement of light, he has also admitted that at the place of

occurrence Neelkamal and Anand Dhruv have not stated about the

incident. He has also admitted that when they reached there, the

Police were making doubt over the Neelkamal and Anand Dhruv for

commission of such offence by them. He has also admitted that when

he reached to Police Station then Police person told him that they are

seizing the clothes of Sanjay Dhruw and asked him to put his signature

then he has signed. He has also admitted that before the Police, the

accused has not given his clothes shoes after removing it.

15.Anand Kumar Dhruv (PW/3) is eye witness to the incident who has not

supported the case of the prosecution as he states that when he

reached the place of occurrence, he found his brother, Dushyant

Kumar, lying there and a tall, broad-shouldered man whom he did not

recognize; was standing nearby, upon seeing him, he immediately fled

away. To catch hold of him, Neelkamal and himself ran away and came

to the road and also stated that at the same time, two persons were

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coming on a motorcycle from the direction of Bhatapara; and they

caught hold of the person who was sitting in the back of driver of the

vehicle as that very person had assaulted Dushyant and brought him

back to the scene, kept him tied up there. He has also stated that

Police seized blood stained soil, steel blade, iron screw driver,

deceased Dushyant's clothes (shirt), slippers, a piece of stone, a Nokia

mobile phone, another mobile phone (also of the Nokia brand) vide

seizure memo (Exhibit P-4) and a third mobile phone belonging to the

accused, a shirt, a pair of shoes, a Gamchha (towel/scarf) bearing

stains resembling blood, a pair of full-length trousers vide Exhibit P-5

wherein he put his signature.

16.He has also stated that Constable Ravishankar of the Bhatapara Rural

Police Station seized a sealed packet in his presence, which was

stated to contain the deceased's underwear and clothes and he put his

signature in the seizure memo (Exhibit P-6). This witness was not

supporting the case of the prosecution fully, therefore, the prosecution

has sought permission to cross examine and in the cross examination

he has denied that he is aware of the fact that the accused and

Dushyant were known to each other and also denied about his injury

caused by the appellant and love affair between the deceased and

Seema (PW/9). He has also denied about the information that the

appellant has taken the deceased to Arjuni Khar or the appellant has

informed the deceased about their meeting on telephone on

02.06.2015 in the evening hour, crushing Dushyant's face with a stone

by the accused, the presence of the appellant at the place of

occurrence. The prosecution has cross-examined the witness as he

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was not supporting the case of the prosecution and in the cross-

examination he has denied that through mobile light he saw that the

accused was crushing the face of the deceased and the accused ran

away as such he along with Neelkamal have caught hold of him in the

place of occurrence.

17.This witness was also cross-examined by the defence wherein he has

admitted that the person who has assaulted Dushyant was some tall

and fatty person, he attempted to catch hold him but he ran away. He

has also admitted that when they were searching the person who has

assaulted the deceased then two persons were coming from

Bhatapara by motor cycle and when they caught hold the person who

was sitting behind the driver of the motor cycle, he felt down and

sustained injury and that person is the appellant. He has also admitted

that they have taken Sanjay Dhruw to the place of occurrence and also

admitted about the assault done with the appellant by the villagers and

fell down at the place of occurrence. He has also admitted that when

he has gone to Bhatapara for postmortem of the deceased, the Police

have asked him to sign on the document from Ex. P/1 to P/10.

18.Neelkamal Dhruv (PW/4) who is eye witness to the incident has not

supported the case of the prosecution. He denied that the accused

caught hold of the deceased and assaulted him, assaulting of

deceased by the accused. He voluntarily stated that when he

proceeded to place of occurrence, he saw two persons assaulting the

deceased Dushyant. He has also denied that the accused was

crushing the head of deceased Dushyant by stone and voluntarily

stated that he saw that one person was running away from there and

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denied that the said person is Sanjay Dhruv. He has also denied that

they identified the place of occurrence and caught hold of the accused

and the deceased was assaulted by the accused with stone. This

witness has also denied seizure of blade, screw driver and stone at the

place of incident.

19.Dr. Ajay Kumar Gupta (PW/7) who has conducted the postmortem and

has given his report that on 03.06.2015 he examined male dead body

whose face, eyes, nose, toes were brutally crushed. The doctor after

conducting the postmortem has given his report that the death was

caused due to obstruction in the airway and due to excessive bleeding

and the death was homicidal in nature. The death might be caused

before 8 to 24 hours of postmortem conducted by him.

20.The witness-Anand Kumar Dhruv was examined by Dr. Ajay Kumar

Gupta (PW/7) vide Ex. P/14 wherein he found small abrasion on the

forehead and two abrasions on the middle finger of right hand and

swelling in the upper part of the hand which are simple in nature. He

has also examined the accused and given his report (Ex. P/15) stating

that in the left as well as right eye there was readiness with pain and

swelling. He has also examined the seized articles and given his report

(Ex. P/16) wherein he has stated that there was blood stain in all the

seize articles and also advised for forensic analysis. The doctor has

also examined the printed shirt, shoes, towel, jeans pant wherein blood

stain was found and advised for forensic analysis of these items vide

its report (Ex. P/17). The said witness was cross-examined by the

accused wherein he has admitted that airway can be ruptured due to

collusion by hard and blunt object. The witness has also admitted that

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no fingerprint marks or similar traces indicative of strangulation were

found on the neck of the deceased. He also admitted that if a person is

riding a motorcycle and is forcibly pulled off or thrown from the moving

vehicle, he could sustain injuries similar to those observed on the

accused, Sanjay Dhruv. The injuries seen on the body of the accused

are possible if a person is forcibly fell down, pulled off or thrown from

the moving motor cycle.

21.The appellant was also examined by doctor R.K. Maheshwari (PW/10)

on 02.06.2015 and given his report (Ex. P/19) stating that there was

crushed wound size 2 x 0.5 cm., swelling in the back and near

shoulder size 10 x 0.5 cm. as well as in the right and left hand to

measuring 2 x 1 cm. and 4 x 2 cm. and in the face, there was abrasion

2 x 1 cm. The injuries were simple in nature and according to him it

was inflicted before 4 hours of his examination.

22.Rukmani Bai (PW/8) who is aunt of Seema Dhruv has denied about

love affair between deceased Dushyant and Seema Dhruv.

23.Seema Dhruv (PW/9) who is sister of the accused Sanjay Kumar Dhruv

has denied the love affair with deceased, mobile number of the

deceased, about physical relation with the deceased and also denied

that they were ready to marry.

24.M.L. Tiwari (PW/14), Investigating Officer has admitted that he has not

conducted any enquiry to ascertain as to whom mobile phone

No.8103324829 was issued by the Reliance Company but admitted

that he has intimated about issuance of mobile phone No.8103324829

in the name of Narrottam Dhruv, R/o House No.23/145, Shankar

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Nagar, Mova, Raipur still no enquiry with Narrottam Dhruv was

conducted by him. He has also admitted that he has not submitted any

certificate under Section 64 (B) of the Evidence Act. He has also

admitted that he has not examined any person of the mobile company

to give evidence regarding call details.

25.The prosecution has sent the seized articles which consists of blood

stain vide seizure memo Ex. P/4, P/5 & P/6 for forensic examination

Ex. P/33 and it was found that in the shirt, stones, shirt of the accused,

shoes of the accused, towel, jeans pant of deceased and the accused,

under garment of the deceased, blood stain was found but no matching

of the blood was found. In the report, it has also been mentioned that

the blood group of the deceased was “B” as found in the shirt of the

deceased.

26.From the evidence brought on record by the prosecution, it is quite

vivid that the seizure witness namely Vyas Narayan (PW-2), has not

supported the case of prosecution as he has denied the seizure of

articles namely mobile phone or shirts and two pieces of stone which

consists of blood stain, seizure of mud containing blood, without blood,

steel blade and screwdriver containing blood stain from the place of

occurrence as well as his signature in the seizure memo at the place of

occurrence as he has signed the seizure memo in the police station

and also admitted that cloths of the accused were seized in the police

station. Thus, the legality and propriety of the seizure memo (Ex. P/4 &

P/5) become doubtful and cannot be used against the accused as per

Section 27 of the Indian Evidence Act, 1872.

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27.Now this Court is examining whether seizure memo (Ex. P/4 & P/5)

fulfills the essential ingredients to attract Section 27 of the Act of 1872

or not, thus, it is expedient for this Court to extract Section 27 of the

Act, 1872 which reads as under:-

“27. How much of information received from accused may be

proved.— Provided that, when any fact is deposed to as

discovered inconsequence of information received from a

person accused of any offence, in the custody of a police-officer,

so much of such information, whether it amounts to a confession

or not, as relates distinctly to the fact thereby discovered, may

be proved.”

28.From perusal of Section 27 of the Act, 1872, it is quite vivid that the

essential ingredients of Section 27 of the Act, 1872 are threefold which

are as under:-

“i. The information given by the accused must led to the

discovery of the fact which is the direct outcome of such

information.

ii. Only such portion of the information given as is distinctly

connected with the said recovery is admissible against the

accused.

iii. The discovery of the facts must relate to the commission of

such offence.”

29.Section 27 of the Act of 1872 is always subject matter of examination

before the Hon’ble Supreme Court and various Courts. The Hon’ble

Supreme Court in the latest judgment has examined the provisions of

Section 27 of the Act of 1872 in case of Nilu @ Nilesh Koshti vs.

State of Madhya Pradesh reported in 2026 INSC 173 and in

paragraphs 21 & 22 has held as under:

“The scope and ambit of Section 27 have been examined by

this Court in Delhi Administration vs. Bal Krishan and Others.

21. Elucidating on what constitutes “discovery of fact” under

Section 27 of the Evidence Act, this Court in Udai Bhan vs.

State of Uttar Pradesh observed as follows :

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“11. Thus it appears that Section 27 does not nullify the ban

imposed by Section 26 in regard to confessions made by

persons in police custody but because there is the added

guarantee of truthfulness from the fact discovered the

statement whether confessional or not is allowed to be given in

evidence but only that portion which distinctly relates to the

discovery of the fact. A discovery of a fact includes the object

found, the place from which it is produced and the knowledge

of the accused as to its existence. ….” (Emphasis supplied)

22. The aforesaid legal position was comprehensively

reiterated and elaborated upon by this Court in Bodhraj Alias

Bodha and Others vs. State of Jammu and Kashmir4, wherein

the question of whether evidence relating to recovery is

sufficient to fasten guilt on the accused was examined at

length. This Court held that for evidence under Section 27 to be

admissible, the information must emanate from an accused

who is in police custody. The Court elucidated that the basic

idea embedded in Section 27 is the doctrine of confirmation by

subsequent events - when a fact is discovered on the strength

of information obtained from a prisoner, such discovery serves

as a guarantee of the truthfulness of the information supplied.

The Court further observed that whether the information is

confessional or non-inculpatory in nature, if it results in the

discovery of a fact, it becomes reliable information.

Significantly, it was held that the mere recovery of an object

does not constitute the discovery of fact envisaged in the

section. Relying on the Privy Council's decision in Pulukuri

Kottayya and Others vs. King Emperor, the Court held that the

"fact discovered" embraces not merely the object recovered,

but the place from which the object was produced and the

knowledge of the accused as to its existence, and that the

information given must relate distinctly to that effect.”

30.Thus, from the evidence of seizure witnesses Vyas Narayan Dhruv

(PW/2) who turned hostile, it is quite vivid that there are contradictions

in the testimonies of the witnesses to (i) both Section 27

memorandums and (ii) seizure memos. The prosecution has cited

Anand Kumar Dhruv (PW/3) and Neelkamal Dhruv (PW/4) as witness

to the statement under Section 27 of the Act of 1872 made by the

accused and suspicion had fallen upon him as they have admitted in

the evidence that they put their signature in the Police Station on this

statement and also admitted that materials were seized in the Police

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Station.

31.In view of above, it is evident that these witnesses not only turned

hostile but also not supported the case of the prosecution on any

material particulars in relation to the recoveries except admitting their

signature on the memorandum and seizure memos. From the record of

the case, it is apparent that the accused continuously remained in

judicial custody during the trial, therefore, the said hostility and non-

corroboration can also not be attributed to any influence or tampering

on his part. The recovery circumstance, therefore, remains legally

tenuous. As such, the conviction of the appellant on the basis of

alleged proved recovery by the trial Court, is erroneous and based

upon perverse finding, therefore, his conviction deserves to be set

aside.

32.From the evidence brought on record by the prosecution, it is quite

vivid that the prosecution star witnesses PW/3 Anand Kumar Dhruv

and PW/4 Neelkamal Dhruv who were eye witnesses to the incident

and turned hostile have not supported the case of the prosecution as

witness (PW/3) has admitted that the person who has assaulted

Dushyant was some tall and fatty person, he attempted to catch hold

him but he ran away and when they were searching the person who

has assaulted the deceased then two persons were coming from

Bhatapara by motor cycle and they caught hold the person who was

sitting behind the driver of the motor cycle, he felt down and sustained

injury and that person is the appellant and also admitted that they have

taken Sanjay Dhruw to the place of occurrence and also supported the

defence taken by the accused in his statement recorded under Section

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313 of the Cr.P.C. Similarly the witness (PW/4) has also not supported

the case of the prosecution as this witness has denied seizure of

blade, screw driver and stone at the place of incident. As such, from

the evidence adduced by the prosecution, it is quite vivid that the

prosecution is unable to prove the involvement of the appellant in the

commission of offence beyond reasonable doubt. Thus, the finding of

the learned trial Court from at paragraph 42 that the evidence of hostile

witness to prove the innocence of the accused, is not sustainable, is

incorrect and against the provisions of law.

33.Similarly, the finding of the trial Court at paragraph 43 that if the

appellant is not the original accused, therefore, recording of the Dehati

Nalsi (Ex. P/10) and the named FIR could have not been recorded by

the hostile witness also suffers from surmises and conjuncture and

cannot be taken plea of prove against the appellant. Similarly recording

of finding by the trial Court at paragraph 44 that the accused was

caught hold at the place of occurrence relying upon the testimony of

Vyas Narayan (PW/2) and Prashant Kumar Dhruv (PW/6) who are the

hearsay witnesses, is not sustainable and deserves to be rejected.

34.The finding of the trial Court in paragraph 45 that in the shirt, shoes,

towel of the accused, contained blood stain and the defence taken by

by the accused that he fell down at the place of occurrence when he

was taken by the people, as such blood stain found in the clothes of

the accused, is not acceptable and same is erroneous and on the basis

of this finding, the learned trial Court has recorded that the involvement

of the appellant in the commission of offence cannot be ruled out,

suffers from illegality as there was no blood matching found from the

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blood of deceased and the accused is unable to explain under what

circumstances he was found at the place of occurrence, is against the

provisions of Section 106 of the Act, 1872 as this Section is applicable

only when accused only after the prosecution succeeds in establishing

the basic 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 a

proper explanation about the existence of the said other facts, the

Court can draw an appropriate inference against the accused. In cases

based on circumstantial evidence, the accused's failure to provide a

reasonable explanation as required under Section 106 of the Evidence

Act can serve as an additional link in the chain of circumstantial

evidence but only if the prosecution has already established other

essential ingredients sufficient to shift the onus on the accused.

However, if the prosecution fails to establish a complete chain of

circumstances in the first place, then the accused's failure to discharge

the burden under Section 106 of the Evidence Act becomes irrelevant.

35.Section 106 of the Act, 1872 has recently come up for consideration

before Hon’ble the Supreme Court in case of Nusrat Parween Vs.

State of Jharkhand [2024 SCC OnLine SC 3683] wherein it has been

held in paragraphs 17, 18, 19, 20, 21 as under:-

“17. It is a cardinal principle of criminal jurisprudence that

Section 106 of the Evidence Act shall apply and the onus to

explain would shift on to the accused only after the prosecution

succeeds in establishing the basic 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 a proper explanation about the

existence of the said other facts, the Court can draw an

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appropriate inference against the accused. In cases based on

circumstantial evidence, the accused's failure to provide a

reasonable explanation as required under Section 106 of the

Evidence Act can serve as an additional link in the chain of

circumstantial evidence - but only if the prosecution has already

established other essential ingredients sufficient to shift the onus

on to the accused. However, if the prosecution fails to establish

a complete chain of circumstances in the first place, then the

accused's failure to discharge the burden under Section 106 of

the Evidence Act becomes irrelevant.

18. The law concerning the invocation of shifting of onus under

Section 106 of the Evidence Act has been explained by this

Court in the case of Shambu Nath Mehra v. State of Ajmer28,

wherein it was held as follows:

“8. Section 106 is an exception to section 101. Section 101 lays

down the general rule about the burden of proof.

"Whoever desires any Court to give judgment as to any legal

right or liability dependent on the existence of facts which he

asserts, must prove that those facts exist".

Illustration (a) says- AIR 1956 SC 404.

"A desires a Court to give judgment that B shall be punished for

a crime which A says B has committed.

A must prove that B has committed the crime".

9. This 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 facts which are "especially" within the

knowledge of the accused and which he could prove without

difficulty or inconvenience. The word "especially" stresses that. It

means facts that are pre-eminently 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 that cannot be the intention and

the Privy Council has twice refused to construe this section, as

reproduced in certain other Acts outside India, to mean that the

burden lies on an accused person to show that he did not

commit the crime for which he is tried. These cases are Attygalle

v. Emperor and Seneviratne v. R.

20

11. We recognize that an illustration does not exhaust the full

content of the section which it illustrates but equally it can

neither curtail nor expand its ambit; and if knowledge of certain

facts is as much available to the prosecution, should it choose to

exercise due diligence, as to the accused, the facts cannot be

said to be "especially" within the knowledge of the accused. This

is a section which must be considered in a commonsense way;

and the balance of convenience and the disproportion of the

labour that would be involved in finding out and proving certain

facts balanced against the triviality of the issue at stake and the

ease with which the accused could prove them, are all matters

that must be taken into consideration. The section 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.” (emphasis supplied)

19. Further, in Tulshiram Sahadu Suryawanshi and Anr. v. State

of Maharashtra29, this Court observed as under:

“23. It is settled law that presumption of fact is a rule in law of

evidence that a fact otherwise doubtful may be inferred from

certain other proved facts. When inferring the existence of a fact

from other set of proved facts, the court exercises a process of

reasoning and reaches a logical conclusion as the most

probable position. The above position is strengthened in view of

Section 114 of the Evidence Act, 1872. It empowers the court to

presume the existence of any fact which it thinks likely to have

happened. In that process, the courts shall have regard to the

common course of natural events, human conduct, etc. in

addition to the facts of the case. In these circumstances, the

principles embodied in Section 106 of the Evidence Act can also

be utilised. We make it clear that this section is not intended to

relieve the prosecution of its burden to prove the guilt of the

accused beyond reasonable doubt, but it would apply to cases

where the prosecution has succeeded in proving facts from

which a reasonable inference can be drawn regarding the

existence of certain other facts, unless the accused by virtue of

his special knowledge regarding such facts, failed to offer any

explanation which might drive the court to draw a different

inference. (emphasis supplied)

20. A similar observation is found in Nagendra Sah v. State of

Bihar30, wherein the Court held that: -

“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

(2012) 10 SCC 373. (2021) 10 SCC 725. the existence of certain

21

other facts which are within the special knowledge of the

accused. When the accused fails to offer proper explanation

about the existence of said other facts, the court can always

draw an appropriate inference.

23. When a case is resting on circumstantial evidence, if the

accused fails to offer a reasonable explanation in discharge of

burden placed on him by virtue of Section 106 of the Evidence

Act, such a failure may provide an additional link to the chain of

circumstances. In a case governed by circumstantial evidence, if

the chain of circumstances which is required to be established

by the prosecution is not established, the failure of the accused

to discharge the burden under Section 106 of the Evidence Act

is not relevant at all. When the chain is not complete, falsity of

the defence is no ground to convict the accused.”

21. Recently, this Court in the case of Anees v. The State Govt.

of NCT31, held in the following terms:

“40. Section 106 of the Evidence Act cannot be invoked to make

up the inability of the prosecution to produce evidence of

circumstances pointing to the guilt of the accused. This section

cannot be used to support a conviction unless the prosecution

has discharged the onus by proving all the elements necessary

to establish the offence. It does not absolve the prosecution from

the duty of proving that a crime was committed even though it is

a matter specifically within the knowledge of the accused and it

does not throw the burden on the accused to show that no crime

was committed. To infer the guilt of the accused from absence of

reasonable explanation in a case where the other circumstances

are not by themselves enough to call for his explanation is to

relieve the prosecution of its legitimate burden. So, until a prima

facie case is established by such evidence, the onus does not

shift to the accused.” 2024 INSC 368.”

36.As such, there is no credible evidence on record of the case to

establish the exclusive presence of the accused-appellant at the place

of occurrence justifying the shifting of the burden of proof to the

accused-appellant by invocation of Section 106 of the Evidence Act.

37.The finding of the learned trial Court in paragraph 45 that there was no

direct evidence regarding love affair between the deceased and

appellant’s sister, as such still conviction of the appellant suffers from

22

illegality as the prosecution is unable to establish the motive of

commission of offence by the appellant which was essential for the

prosecution. Learned trial Court has further erred in disbelieving the

prosecution evidence by recording its finding that Dr. Ajay Kumar

Gupta (PW/7) in its report Ex. P/13 has given explanation about the

injuries caused to the finger of the witness Anand Kumar Dhruv (PW/3)

ignoring the oral evidence of eye witness without any foundation led by

the prosecution, as such the finding recorded by the learned trial Court,

suffers from perversity and illegality.

38.From appreciation of the evidence, it is quite vivid that the presence of

the appellant at the place of occurrence is itself doubtful as the eye

witnesses of the case have denied the presence of the appellant at the

place of occurrence and from candid consideration of all the evidence

in a fair and reasonable manner, it is found that the prosecution is not

able to prove the involvement of the appellant in commission of offence

for which he was charged though the prosecution has to prove their

case beyond reasonable doubt which means that such doubt must be

free from suppositional speculation and the doubt must be actual and

substantial not merely vague detailing as held by Hon’ble Supreme

Court in the matter of Goverdhan Vs. State of Chhattisgarh, [2025

(3) SCC 378] wherein it has been held in paragraph 27 as under:-

“27. Thus, the requirement of law in criminal trials is not to

prove the case beyond all doubt but beyond reasonable doubt

and such doubt cannot be imaginary, fanciful, trivial or merely

a possible doubt but a fair doubt based on reason and

common sense. Hence, in the present case, if the allegations

against the appellants are held proved beyond reasonable

doubt, certainly conviction cannot be said to be illegal.”

23

39.After meticulously scrutinizing the facts and circumstances of the

present case and keeping in mind the proposition of law as observed

by Hon’ble the Supreme Court in case of Goverdhan (supra), we are

of the considered opinion that there are not only actual but substantial

doubts as to the guilt of the appellant herein. We are, therefore, unable

to find any evidence as to how and by whom the deceased was killed.

The unfortunate man succumbed to injuries but the substantial doubts,

mentioned above, confer a right upon the accused to be held not guilty.

40.In view of the aforesaid analysis, we are of the considered opinion that

it would be unsafe to affirm the conviction of the appellant recorded by

the trial Court and accordingly, we set aside the conviction and

sentence imposed upon him under Section 302 of the IPC. He is

acquitted of the said charge.

41.The appellant is reported to be on bail. His bail bonds shall continue for

a further period of six months from today in view of Section 437-A of

Cr.P.C./Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

42.The appeal succeeds and it is allowed.

43.Let a certified copy of this judgment along with the original record be

transmitted to the trial Court concerned for necessary information.

Sd/- Sd/-

(Sanjay S. Agrawal) (Narendra Kumar Vyas)

Judge Judge

Raju

24

Head Note

“Unless the prosecution establishes other essential ingredients

sufficient to shift the onus on the accused, it cannot take benefit of

Section 106 of the Indian Evidence Act, 1872”

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varxZr bldks dksbZ ykHk izkIr ugha gksxkA **