Page 1 of 37

(Cr.A.No.1405/2016)

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.1405 of 2016

{Arising out of judgment dated 6-8-2016 in Sessions Trial

No.50/2015 of the Sessions Judge, Rajnandgaon}

Judgment reserved on: 1-12-2023

Judgment delivered on: 14-12-2023

Usman, S/o Jhaduram Satnami, aged about 18 years and Seven

months, R/o Village Panduka, Police Station Khairagarh, District

Rajnandgaon (C.G.)

(In Jail)

---- Appellant

Versus

State of Chhattisgarh, Acting through Station House Officer, Police

Station Somni, District Rajnandgaon (C.G.)

---- Respondent

---------------------------------------------------------------------------------

For Appellant: Mrs. Pooja Luniya, Advocate on behalf

of Mr. Ajay Kumar Chandra, Advocate.

For Respondent / State:Mr. Ashish Tiwari, Govt. Advocate.

---------------------------------------------------------------------------------

Hon'ble Shri Sanjay K. Agrawal and

Hon'ble S hri Sanjay Agrawal, JJ.

C.A.V. Judgment

Sanjay K. Agrawal, J.

1.Invoking appellate jurisdiction of this Court under Section

374(2) of the CrPC, the sole appellant herein has preferred

this criminal appeal calling in question legality, validity and

correctness of the impugned judgment and order dated 6-8-

2016 passed by the Sessions Judge, Rajnandgaon in

Sessions Trial No.50/2015, by which the appellant has been

convicted and sentenced as under with a direction to run 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

both the sentences concurrently: -

Conviction Sentence

Section 302 of the IPCImprisonment for life & fine of

₹

1,000/-, in default, additional

rigorous imprisonment for three

months.

Section 201 of the IPCRigorous imprisonment for seven

years & fine of 1,000/-, in default,

₹

additional rigorous imprisonment for

three months.

Facts of the Case

2.Case of the prosecution, as projected by the prosecution and

accepted by the trial Court, is that in the intervening night of

10

th

& 11

th

January, 2015, at Village Indawani, Police Station

Somni, District Rajnandgaon, the appellant caused deep cut

wrist injury to Bhuneshwari by which she died and

thereafter, in order to screen himself from the offence,

destroyed the evidence and thereby committed the offence.

Further case of the prosecution is that on 25-12-2014, the

appellant herein came to the house of his sister Draupati

(PW-6) at Village Indawani and Bhuneshwari (now deceased)

had also came along with her mother Sonbati (PW-11) to the

said house which belonged to her uncle Deena Prasad (PW-

5), who happens to be father-in-law of Draupati (PW-6). It is

also the case of the prosecution that in the intervening night

of 10-1-2015 & 11-1-2015, Bhuneshwari was watching

television along with her family members and her mother

had gone to sleep. At around 1 a.m. in the intervening night 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

of 10-1-2015 & 11-1-2015, when mother of Bhuneshwari

could not find Bhuneshwari nearby, she started looking for

her and then found that the appellant was also missing.

Draupati (PW-6) informed that she had sent the appellant for

switching off the TV and thereafter, while conducting search

of house & bathroom, it was noticed that the bathroom was

bolted from inside and the body of the deceased and that of

the appellant were lying in the pool of blood. Information

was given by Up-Sarpanch Dehar Lal Sahu (PW-7) to Police

Station Somni vide Ex.P-24 upon which Investigating Officer

Amarnath Tiwari (PW-15) reached to the spot of incident and

sent the appellant and the deceased to the District Hospital,

Rajnandgaon where deceased Bhuneshwari was declared

dead. Zero morgue was registered vide Ex.P-5 and FIR was

registered vide Ex.P-19. Seizure of articles including lined

paper Ex.P-21 was made and same were seized vide Ex.P-4

disclosing that the deceased and the appellant wanted to get

married, however, due to the family refusal and their non-

acceptance, they have attempted to commit suicide. Sample

writing of the appellant was also taken vide Ex.P-18 and it

was seized vide Ex.P-14. Medical examination of the

appellant was conducted vide Ex.P-1 by Dr. Nohar Prasad

Jangde (PW-1). Naksha panchayatnama was prepared vide

Ex.P-7 and spot map was prepared vide Ex.P-8. Dead body

of deceased Bhuneshwari was subjected to postmortem vide

Ex.P-11, which was conducted by Dr. S.N. Hussaini (PW-9) 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

wherein cause of death was stated to be shock due to cut

wrist injury along with evidence of neck compression,

however, nature of death was not disclosed by the doctor.

Opinion of medical expert that is called query report was

sought regarding mode of death and injury on the body of

the deceased, which was rendered vide Ex.P-13 by Dr. S.N.

Hussaini (PW-9) on 15-1-2015. FIR was registered vide

Ex.P-26 on 18-3-2015 against the appellant for offence

under Sections 302 & 201 of the IPC and the appellant

herein was arrested on 19-3-2015 vide Ex.P-16 and

intimation of arrest was given on the same day vide Ex.P-15.

FSL report dated 10-5-2016 was received vide Ex.P-31

according to which human blood was found on Articles A, C,

E, F1 & F2. Statements of the witnesses were recorded

under Section 161 of the CrPC.

3.Upon due investigation, the accused / appellant was charge-

sheeted for offence under Sections 302 & 201 of the IPC and

charge-sheet was filed before the jurisdictional criminal court

and the case was committed to the Court of Sessions for

conducting trial and for hearing and disposal in accordance

with law.

4.The accused / appellant abjured the guilt and entered into

defence. In order to bring home the offence, the prosecution

examined as many as seventeen witnesses and exhibited 31

documents along with Article A. The defence has examined 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

none, but exhibited eight documents Exs.D-1 to D-8.

Findings of the trial Court

5.The trial Court after appreciating oral and documentary

evidence available on record, convicted and sentenced the

appellant in the manner mentioned in the opening paragraph

of this judgment finding that (1) the death of deceased

Bhuneshwari was homicidal in nature; and (2) since the

appellant was also staying in the house of his sister Draupati

(PW-6) where the deceased along with her mother was also

staying and the appellant & the deceased, both, were found

inside the bathroom bolted from inside and the appellant has

not explained as to how and in what circumstances, the

deceased suffered deep cut wrist injury on account of which

she died, therefore, the appellant is the author of the crime,

against which the instant appeal under Section 374(2) of the

CrPC has been preferred.

Submissions

6.Mrs. Pooja Luniya, learned counsel appearing for the

appellant, would submit that the appellant & deceased

Bhuneshwari both were staying together in the house of

Draupati (PW-6) and they wanted to marry and in the

intervening night of 10

th

& 11

th

January, 2015, both of them

decided to commit suicide and during the course, both have

cut their wrists. She would further submit that in the

suicide note Ex.P-21, all these facts have been mentioned 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

and death could not be proved by the prosecution to be

homicidal and is suicidal, therefore, even accepting all these

facts, the appellant cannot be convicted for murder of the

deceased, as such, he is entitled for acquittal on the basis of

benefit of doubt.

7.Mr. Ashish Tiwari, learned Government Advocate appearing

for the State / respondent, would support the impugned

judgment and oppose the appeal and submit that the

appellant & the deceased, both, were living together in the

house of Draupati (PW-6) and they were found inside the

bathroom bolted from inside and therefore by virtue of

Section 106 of the Evidence Act, the fact of she having

received deep cut wrist injury, which was within the special

knowledge of the appellant herein, has not been explained by

the appellant in his statement recorded under Section 313 of

the CrPC and no explanation whatsoever has been offered by

him regarding injury suffered by the deceased. Therefore,

the trial Court has rightly convicted the appellant for offence

under Section 302 of the IPC which deserves to be

maintained as it is strictly in accordance with law.

8.We have heard learned counsel for the parties and

considered their rival submissions made herein-above and

also went through the record with utmost circumspection.

9.After hearing learned counsel for the parties and on going

through the record, following two questions arise for 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

determination: -

Questions involved

(1)Whether death of deceased Bhuneshwari was homicidal

in nature as for conviction under Section 302 of the

IPC, death should be homicidal in nature, or it was

suicidal in nature?

(2)If death is homicidal, whether the trial Court is justified

in invoking Section 106 of the Indian Evidence Act,

1872 for convicting the appellant herein?

Answer to question No.1

10.Since the appellant has been convicted by the trial Court for

offence punishable under Section 302 of the IPC holding that

death of Bhuneshwari was culpable homicide under Section

299 of the IPC which amounted to murder under Section

300 of the IPC and is punishable under Section 302 of the

IPC. In order to hold an accused guilty of murder, the

prosecution must firstly prove that it is a culpable homicide

and accused will come under the mischief of Section 299 of

the IPC only when the act done by him has caused death.

11.At this stage, it would be relevant to notice the definition of

'culpable homicide' which is provided under Section 299 of

IPC as under :-

“299. Culpable homicide.–Whoever causes death

by doing an act with the intention of causing death,

or with the intention of causing such bodily injury

as is likely to cause death, or with the knowledge 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

that he is likely by such act to cause death,

commits the offence of culpable homicide.”

12.Homicide is the killing of a human being by a human being.

It is either lawful or unlawful. Unlawful homicide includes

culpable homicide not amounting to murder under Section

299 of the IPC and murder under Section 300. Halsbury

classifies homicide as follows :-

“The term “homicide” is used to describe the killing

of a human being by a human being. Such a killing

may be lawful or it may be unlawful and criminal.

Unlawful homicide includes murder, manslaughter,

causing death by dangerous driving, killing in

pursuance of a suicide pact, and infanticide.”

13.“Homicide”, as derived from latin, literally means the act of

killing a human being. Under Section 299 of the IPC,

homicide becomes culpable when a human being terminates

the life of another in a blameworthy manner. Culpability

depends on the knowledge, motive and the manner of the act

of the accused. The offence is punishable under either

Section 302, or Section 304 of the IPC which consists of two

parts. (See Chenda @ Chanda Ram v. State of

Chhattisgarh

1

.)

14.In the matter of Reaz-ud-din Shaikh v. Emperor

2

, it has

been explained by Shuarf-ud-din J, as under :-

“… all murder is culpable homicide, but all

culpable homicide is not murder ... subject to the

five exceptions to section 300, Indian Penal Code,

every act that falls within one or more of the four

12014 CrLJ 172

2(1910) 11 CrLJ 295 : HS Gaur Penal Law of India, 10

th

Edn. Vol. 3, pp 2214-2235 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

clauses of section 300, Indian Penal Code, is

murder and also falls within the definition of

culpable homicide in Section 299, Indian Penal

Code. Every act that falls within any one or more

of the sets of circumstances described in the five

exceptions of that section, is by that fact taken out

of section 300, Indian Penal Code but the act

notwithstanding continues to be within section 299

and since it is not murder, it is culpable homicide

not amounting to murder. Every act that falls

within section 299 and does not fall within section

300, since it is not murder, is culpable homicide

not amounting to murder.”

15.It is well settled law that in order to convict an accused

under Section 302 of the IPC, the first and foremost aspect

to be proved by the prosecution is the homicidal death and if

the evidence on record produced by the prosecution falls

short of the proof of homicidal death, the accused cannot be

convicted under Section 302 of the IPC. (See Madho Singh

v. State of Rajasthan

3

and Chandrapal v. State of

Chhattisgarh

4

.)

16.Similarly, in the matter of Shobhau alias Shubhau v. State

of M.P.

5

, it has been held by the Madhya Pradesh High

Court that to prove an offence of murder the death should be

homicidal of which onus in a criminal trial is upon the

prosecution. In the absence of legal proof of the death being

homicidal, because of the serious lacuna of not obtaining the

report of Anatomy Expert to prove homicidal death, the

benefit will go to the accused and not to the prosecution, as

3(2010) 15 SCC 588

42022 SCC Online SC 705

51998 CrLJ 3934 2023:CGHC:32590-DB

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this seals the fate of the prosecution and on this ground the

accused cannot be held to legal criminality of the offence

under Section 302 of the Indian Penal Code. (See The State

Government of M.P. v. Ramkrishna Ganpat Rao

6

and The

State of Punjab v. Bhajan Singh

7

.)

17.The Supreme Court, in the matter of Rupinder Singh

Sandhu v. State of Punjab and others

8

, has held that to

find a man guilty of culpable homicide, the basic fact

required to be established is that the accused caused the

death. In the matter of M.B. Suresh v. State of

Karnataka

9

, it has been held that for holding an accused

guilty of murder, the prosecution has first to prove that it is

a culpable homicide. Culpable homicide is defined under

Section 299 of the Indian Penal Code and an accused will

come under the mischief of this section only when the act

done by him has caused death.

18.Now, the submission on behalf of the appellant is that death

is suicidal in nature and it was not homicidal in nature.

19.In order to consider the said plea, it would be appropriate to

notice the difference between Homicidal and Suicidal

Wounds based upon the Number, Direction and Extent of

the Wounds for which we may profitably refer to Modi A

Textbook of Medical Jurisprudence and Toxicology ,

6AIR 1954 SC 20

7AIR 1975 SC 258

8(2018) 16 SCC 475

9(2014) 4 SCC 31 2023:CGHC:32590-DB

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Twenty Seventh Edition, Chapter 27, in which it has been

held at page 765 as under: -

2 7.11 Difference between Suicidal, Homicidal

and Accidental Wounds

In case of death occurring from wounds, the

question is often raised as to whether they were the

result of suicide, homicide or homicide or accident.

The answer is not always easy, but it can be given

to some extent by a medical practitioner, by noting

the following points:

(a) The situation and character of the wounds.

(b) The number, direction and extent of the

wounds.

(c) The condition of the locality, the

surroundings of the wounded person and the

circumstances of the injury.

27.11.1 The Situation and Character of the

Wound

Suicidal wounds are usually on the front or on the

sides of the body, and affect the vital organs. They

are usually incised, punctured or gunshot wounds.

Suicidal incised wounds are generally situated on

the front of the body in easily accessible position,

especially, on the throat, chest, or wrist. These

may be found in unusual regions.

Incised and punctured wounds situated on

the back or in such a position as cannot be easily

reached by a suicider, are homicidal, though a

suicider may sometimes produce wounds on

oneself which may have the appearance of being

homicidal.

Incised or punctured wounds may be caused

accidentally by falling upon a sharp cutting

weapon held in the hand or upon a sharp pointed

object, or by sharp pieces of broken glass. Such

wounds may be situated at such places as may give 2023:CGHC:32590-DB

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rise to a suspicion of homicide if there was no

eyewitness at the time of the accident. Homicidal

punctured wounds by a needle may cause death if

in a vital part like heart, base of the brain of if a

drug like insulin is injected in a vein. A needle may

also be used for infanticide.

Defensive wounds like cuts on the fingers and

palms are produced during attempts by the injured

person to seize the weapon in order to instinctively

defend himself and are, therefore, indicative of

homicide. Incised or lacerated wounds inflicted on

the backs of the hands, wrists, between fingers and

thumb, and forearms or on the back or any other

part of the body during an endeavour to ward off

blows on the head or other part of the body, are

strongly suggestive of murder. Bruises may be

seen if a blunt weapon is used to attack.

Incised wounds on the nose, ears and genitals

are usually homicidal, and are inflicted on account

of jealousy or revenge in case of adultery.

It should be noted that incised wounds on the

genital organs are sometimes produced after death.

Incised wounds of a trifling nature on the

genitals may be self-inflicted.

Thereafter, further at page 766, while dealing with the topic

“The Number, Direction and Extent of the Wounds” , it has

been held as under: -

27.11.2 The Number, Direction and Extent of

the Wounds

Several injuries on the body, if they are deep and

extensive, are as a rule homicidal if we except

accidents from falls, motor cars and other vehicles.

In India, murderers select a heavy cutting

instrument such as a gandasa (chopper), banka,

khurpi, kulhari (axe) sword and inflict several

deadly wounds on the head, cutting the skull

hones and exposing the brain tissue, or on the 2023:CGHC:32590-DB

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neck cutting the larynx, oesophagus, large blood

vessels, vertebrae and even the spinal cord. They

are not generally satisfied by inflicting only one

wound, but inflict several mortal wounds, and

sometimes hack the body so much that the head is

either severed altogether from the trunk, or

remains, connected to it by a mere tag of skin. In

addition to these, several wounds are usually

inflicted on the trunk and limbs.

It must be borne in mind, that in some cases,

a murderer kills his victim by inflicting one or more

fatal wounds and then, in order to divert the

attention of the police to possible suicide, he

inflicts on the dead body other wound which in

themselves would have caused the death had they

been produced during life.

On the other hand, several severe injuries on

the body may sometimes be suicidal.

The presence of a large number of superficial

wounds is presumptive evidence of self-infliction.

Suicidal wounds caused by a cutting

instrument on the neck are generally single and are

situated either above the hyoid bone and open

directly into the mouth or are situated below the

hyoid bone and involve thyroid or cricoid cartilage,

or the large blood vessels of one side. However,

extensive wounds in the neck involving the large

blood vessels of both sides and reaching the spine,

though rare, are seen in suicidal cases.

Similarly, Modi A Textbook of Medical Jurisprudence and

Toxicology further provides Hesitation (tentative) Cuts as

under: -

27.11.2.1 Hesitation (tentative) Cuts

Sometimes, there are two or more superficial and

cuts at the commencement of the wound, when the

suicidal person is still hesitating or nervous, and 2023:CGHC:32590-DB

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then makes a deep cut, after plucking up courage

to destroy himself.

Suicidal wounds of the throat inflicted by a

right-handed person are usually high up in the

neck and are directed obliquely from a higher to a

lower level and from below the left ear to the right

side under the chin, and shows tailing (tapering) at

the point of withdrawal of the weapon, while

homicidal wounds of the throat, when inflicted

from the front by a right-handed person, are, as a

rule horizontal and directed from right to left; but

the reverse is the case if the assailant happens to

the left-handed. Again a homicidal wound on the

throat may resemble a suicidal one, if the assailant

has inflicted it from behind the victim or by

standing on the right when the victim is lying. It is

difficult to decide in the case of ambidextrous

person, who can use both hands.

The differences between suicidal and

homicidal cuts are as follows: -

Suicidal or Self-inflicted Homicidal

Accessible and elective

anatomical sites like wrist

or neck

Anywhere in the body

Multiple, linear, parallel

cuts

Their position and

shape very

Usually incised stab

wound

Usually chop wounds.

Stabs and lacerations

may also be present

They are superficial at the

commencement and end is

deeper

They are deeper at the

commencement and

end is superficial

In right handed persons

from left to right and from

above downwards

Any direction

Defence or protection cuts

absent

Defence or protection

cuts present usually

over the ulnar border

of forearm

Suicidal or Self-inflictedHomicidal

Hesitation cuts usually Hesitation cuts usually 2023:CGHC:32590-DB

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present absent

Weapons are usually

found grasped due to

cadaveric spasm or found

near body

Weapons are usually

absent

Scene of crime is usually

closed room. There are no

disturbances of

surroundings

Scene of crime is

disturbed and signs of

struggle may present

Clothes not damaged Clothes may be

damaged

Foreign bodies may not be

found

Foreign body in the

form of mud and glass

blades could be

present.

20.A Division Bench of the Patna High Court in the matter of

Emperor v. Sheo Chandra Prasad

10

in a case where the

body of the deceased was found lying flat with its face

downwards and having several throat wounds caused by

razor but only one of them being severe held that the

position of the body and the nature of the wound indicated

that the wound was suicidal and not homicidal. Their

Lordships of the Patna High Court observed as under: -

“… We have considered the descriptions of these

injuries in the medical evidence in the light of the

observations from Lyon's Medical Jurisprudence,

which I have already cited. The inquest report on

Ramlakhan Singh shows that his body was found

lying flat with face downward on the floor of the

room, so also we learn from the Sub-Inspector, was

the position of Sheo Chandra himself. The two

were lying close together. Ramlakhan besides a

skin deep cut on the right middle finger had two

incised wounds on the neck, one of these was 1" x

¼” x skin deep, and the other was the severe one

which caused his death, i.e. an incised wound 5” x

10A.I.R. 1937 Patna 652 2023:CGHC:32590-DB

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1 ½" x muscle deep on the right side of the neck

cutting the larynx and trachea laterally muscles

and platina of the right side of the neck, and

external carotid artery being divided one vertebra

was grazed. The description fits exactly with the

characteristics which, according to Lyon are to be

found in suicidal injuries, and it is impossible to

say that the evidence excludes or indeed renders

improbable the view that Ramlakhan may have

committed suicide. The third charge is in respect

of the accused's own alleged attempt to commit

suicide. It is in evidence that he like Ramlakhan

was found lying on his face on the floor. The razor

was on the floor about one cubit distant from his

right hand. There were three injuries on the neck

of which two were incised wounds skin deep and

the third was an incised wound on the front of the

neck about 5" x 1 ½" x muscle deep cutting the

larynx and oesophagus and fracturing the cornea of

the right hyoid bone. It can hardly be coincidence

that these injuries should agree so closely with this

observation of Lyon:

A suicide may make more than one

wound, but only one of these will be severe, the

remainder will be tentative cuts made while he

was screwing up his determination to the point

of making the final fatal wound.

In the case of this accused, the medical

opinion also is definitely to the effect that the

injuries found on him were suicidal in nature. In

coming to this conclusion the Assistant Surgeon

had also had regard to the direction of the third i.e.

severe injury on Sheo Chandra's throat; it was

deeper on the left side than on the right, the tail of

the wound being towards the right. This would be

expected assuming the suicide to have held the

weapon in his right hand and drawn it across the

throat from left to right. Mr. S.N. Sahay presses on

us the possibility of some outsider having made an

entrance and committed the homicidal assaults on

Ramlakhan and Sheo Chandra. We have

considered his argument but do not regard that as

a possibility. The circumstances all seem to point 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

unmistakably to the injuries on Sheo Chandra

being due to an attempt by him to commit suicide.”

21.At this stage, it would be appropriate to refer to the

testimony of Dr. S.N. Hussaini (PW-9) – medical witness, who

has conducted postmortem over the body of deceased

Bhuneshwari and found following injuries over the body of

the deceased: -

2- 'ko ijh{k.k ij tks pksV feys Fks og bl izdkj gS&

1- bUlkbt+M ÅaM cka;k dykbZ esa ftlds ,d Nksj ij dbZ NksVs

NksVs Ropk ,oa mlds uhps tks ekal gS ds VqdM+s Fks vkSj ?kko dk

vkdkj 4-3 lseh- x 2 lseh- x elYl ul ,oa VsUMu dh xgjkbZ

rd FkkA jsfM;y ul tks Fkh og dVh gqbZ Fkh] mlds lkFk esa

vU; NksVh uls Hkh dVh gqbZ FkhA

2- rhu jsfMl czkmu vksoy lsi dUV~;wtu BqM~Mh ,oa lcesaVy esa

Fks] ftudk vkdkj 1 lseh x 1 lseh- ls ysdj 1 lseh x 0-5 lseh-

FkkA

3- xksy vkdkj xgjk yky vkSj Hkqjs jax dk dUV~;wtu cka;s xky

ij Fkk ,axy vkWQ ekmFk esa Fkk ftldk vkdkj 1-5 lseh x 1-2

lseh- FkkA

4- dUV~;wtu ,czstu cka;s gkFk ds Mkjle ij Fkk ftldk vkdkj

1-5 lseh x 1 lseh- FkkA

5- dUV~;wtu ,czstu lqijk ,DlVuZy ukp ij Fkk ftldk vkdkj

1 lseh- x 1 lseh- FkkA

6- xnZu ds nka;s rjQ jsfMl ,czsMsM czwLM ,fj;k ftldk vkdkj 2-

5 lseh- x 4 lseh- Fkk vkSj mlds lkFk LVªhi tSlk xys ds lkeus

ds Hkkx esa czwLM ,czsMM t[e ftldk vkdkj 11 lseh x 1 lseh-

Fkk] vkSj xys ij dh peM+h Ropk gVkus ds ckn esa ghesVksek

ftldk vkdkj 1 lseh x 0-5 lseh- dk nka;s rjQ LVuZy

csyh vkWQ LVuksZ esLVkbM elYl ds ds uhps Fkk] lkFk gh ,slk ,d

vkSj gheksVksek cka;s rjQ LVuksZ gkbM elYl ds uhps Fkk ftldk

vkdkj 0-5 lseh x 0-5 lseh- FkkA

7- lwtu ds :i esa dUV~;wtu iwjs nka;k xky ij Fkk] nka;s xky ds

iSjkbVsM fjt+u esa Fkk ftldk vkdkj 2 lseh- x 2 lseh- FkkA

3- e`frdk ds vkarfjd ijh{k.k esa g`n;] QsQM+s] varfM+;ka] dysts] xqnkZ

rFkk vU; lHkh vkarfjd vkxZu Bhd FksA

4- esjs erkuqlkj e`frdk dh e`R;q 'kkWd M~;w Vw fjLV batjh ,ykax

foFk ,foMsal vkWQ usd dEizs’ku ls gqbZ FkhA 'ko ijh{k.k fjiksVZ 2023:CGHC:32590-DB

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Page 18 of 37

(Cr.A.No.1405/2016)

iz-ih&11 gS ftlds v ls v Hkkx ij esjs gLrk{kj gSA mDr fjiksVZ

esjs gLrfyfi esa gSA e`frdk dk iksLV ekVZe MkW- lksgnzk Bkdqj ds lkFk

fd;k FkkA MkW- Bkdqj dh iz- ih&11 ij c ls c Hkkx ij gLrk{kj gSA

22.However, with regard to medical opinion, certain queries

were raised by the investigating officer vide Ex.P-12 which

are as under: -

(I) cut wrist injury e`frdk Lo;a viuh dykbZ dkV dj dh gS

vFkok vU; O;fDr ds }kjk pksaV dkfjr dh x;h gSA

(II) xnZu ncus dh pksaV izk.k ?kkrd gS vFkok cut wrist injury

igqapkrs oDr xnZu nck;k x;k gSA

(III) wrist cut injury ,d ckj dh gS fd dbZ ckj dh gS

multiple fpt gS heap-up over D;k gS LiLV djus dh d`ik

gksA

The said queries were replied by Dr. S.N. Hussaini (PW-9)

vide his query report Ex.P-13, which is as under: -

(1)Incised wound (cut injury) over left wrist was directed

from left to right, was over accessible part of body but

on the other hand it was not associated with the

“Hesitation Cut” and very deep seated even the muscles

tendons were partly cut so that possibility of infliction

by other cannot be denied.

(2)Neck compression mark which were present over neck

of deceased were associated with minimal internal

structure of neck, to label any compression injury as

fatal and non-fatal various factors are to be reviewed

like compression producing gent, the time length for

which neck was compressed & force applied etc.

however it is given in P.M. report in column of cause of

death.

(3)As it is mentioned in P.M. report at beginning there are

multiple heap up ends means it was drawn more than

one time over area of infliction. 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

22A.It is quite apparent that while replying query No.1

whether the deep cut injury on left wrist was self-inflicted

injury or it was caused by some other person, the doctor –

Dr. S.N. Hussaini (PW-9) has informed that cut injury over

left wrist was directed from left to right, however, he has only

expressed the view that possibility of infliction by other

person cannot be denied. As such, Dr. S.N. Hussaini (PW-9)

did not say clearly and emphatically that injury suffered by

deceased Bhuneshwari was by other person or did not give

any clear cut opinion that the injury suffered by the

deceased was the injury inflicted by some other person.

Similarly, question No.3 put to Dr. S.N. Hussaini (PW-9),

whether the deep cut injury on wrist was inflicted once or it

was multiple, has been answered by him that it was more

than once over the area of infliction and the doctor has also

proved the same in his statement before the Court.

However, in cross-examination paragraph 10, he has stated

that injury No.1 suffered by the deceased was easily

accessible to the deceased and if the right handed person

causes injury, then it will be from left to right, and the injury

suffered by the deceased was from left to right. It has

further been stated in paragraph 14 that the possibility of

inflicting multiple injuries on his body by a person intending

to commit suicide, while he was in conscious state of mind,

cannot be denied. In paragraph 21, he has stated that 2023:CGHC:32590-DB

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Page 20 of 37

(Cr.A.No.1405/2016)

injury No.1 i.e. deep cut injury on veins was sufficient to

cause death.

23.As such, considering the nature of injury, particularly injury

No.1 and direction of the said injury and further considering

the opinion of the doctor qua injury No.1 that he did not say

that injury cannot be inflicted by the person intending to

commit suicide and did not say clearly that it was inflicted

by other person and only expressed opinion that the

possibility of infliction by other person cannot be ruled out

and the said opinion has been accepted by the trial Court in

paragraph 27 of the judgment relying upon the opinion

evidence of Dr. S.N. Hussaini (PW-9) and also considering

the statement of Dr. S.N. Hussaini (PW-9) that the injury

was multiple injuries and that he did not specifically say that

it could be inflicted by others, he only expressed an opinion

that possibility of causing said injury by others cannot be

ruled out and in view of difference between suicidal and

homicidal wounds by Modi A Textbook of Medical

Jurisprudence and Toxicology as noticed by us in the

preceding paragraphs followed by the Patna High Court in

Sheo Chandra Prasad’s case (supra) and also in view of the

opinion evidence of Dr. S.N. Hussaini (PW-9), we are of the

considered opinion that all the circumstances seem to point-

out unmistakably towards one conclusion that wound on

deceased Bhuneshwari may be due to attempt by her to 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

commit suicide in which she eventually died and in that view

of the matter, the finding recorded by the trial Court in

paragraph 29 of the judgment that death was homicidal in

nature relying upon the statement of Dr. S.N. Hussaini (PW-

9) is incorrect finding of fact not based on the evidence

available on record. It is held that wounds found over the

body of the deceased were suicidal in nature.

Answer to question No.2

24.The trial Court further proceeded with the aspect that the

appellant & the deceased both were found inside the

bathroom in the house of Draupati (PW-6) being common

relative of both the appellant & the deceased and both were

staying therein; the bathroom was bolted from inside and

both were found in injured condition and they were taken to

Rajnandgaon hospital where Bhuneshwari was declared

dead and the appellant suffered injury and he was medically

examined by Dr. Nohar Prasad Jangde (PW-1). Therefore,

the appellant was liable to explain as to how and on what

circumstances, Bhuneshwari suffered grievous injuries and

died, which he has not explained in his statement under

Section 313 of the CrPC. As such, Section 106 of the

Evidence Act would apply, as it was within the special

knowledge of the appellant being in the bathroom along with

deceased Bhuneshwari bolted from inside and no other

person could have the knowledge as to how she suffered 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

injuries and died, and thus, the trial Court held him guilty

for the aforesaid offence invoking Section 106 of the Indian

Evidence Act, 1872.

25.Now, the question is, whether Section 106 of the Evidence

Act was rightly invoked by the trial Court?

26.Section 106 of the Indian Evidence Act, 1872, states as

under: -

“106. Burden of proving fact especially within

knowledge.—When any fact is especially within the

knowledge of any person, the burden of proving

that fact is upon him.”

27.This provision states that when any fact is specially within

the knowledge of any person the burden of proving that fact

is upon him. This is an exception to the general rule

contained in Section 101, namely, that the burden is on the

person who asserts a fact. The principle underlying Section

106 which is an exception to the general rule governing

burden of proof applies only to such matters of defence

which are supposed to be especially within the knowledge of

the other side. To invoke Section 106 of the Evidence Act,

the main point to be established by prosecution is that the

accused persons were in such a position that they could

have special knowledge of the fact concerned.

28.In the matter of Shambhu Nath Mehra v. The State of

Ajmer

11

, their Lordships of the Supreme Court have held

11AIR 1956 SC 404 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

that the general rule that in a criminal case the burden of

proof is on the prosecution and Section 106 of the Evidence

Act is certainly not intended to relieve it of that duty. On the

contrary, it is designed to meet certain exceptional cases in

which it would be impossible, or at any rate

disproportionately difficult, for the prosecution, to establish

facts which are “especially” within the knowledge of the

accused and which he could prove without difficulty or

inconvenience. The Supreme Court while considering the

word “especially” employed in Section 106 of the Evidence

Act, speaking through Vivian Bose, J., observed as under: -

“11.… The word "especially" stresses that it

means facts that are preeminently or exceptionally

within his knowledge. If the section were to be

interpreted otherwise, it would lead to the very

startling conclusion that in a murder case the

burden lies on the accused to prove that he did not

commit the murder because who could know better

than he whether he did or did not. It is evident

that 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. The King,

1936 PC 169 (AIR V 23) (A) and Seneviratne v. R.

1936-3 ER 36 AT P. 49 (B).”

Their Lordships further held that Section 106 of the

Evidence Act cannot be used to undermine the well

established rule of law that save in a very exceptional class

of case, the burden is on the prosecution and never shifts.

29.The decision of the Supreme Court in Shambhu Nath Mehra 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

(supra) was followed with approval recently in the matter of

Nagendra Sah v. State of Bihar

12

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 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.”

30.Similarly, the Supreme Court in the matter of Gurcharan

Singh v. State of Punjab

13

, 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

12(2021) 10 SCC 725

13AIR 1956 SC 460 2023:CGHC:32590-DB

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Page 25 of 37

(Cr.A.No.1405/2016)

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 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.

31.In the matter of Sawal Das v. State of Bihar

14

, the Supreme

Court has clearly held that Section 106 of the Evidence Act

would not absolve the prosecution from the duty of

discharging its general or primary burden of proving the

prosecution case beyond reasonable doubt. It is only when

the prosecution has led evidence which, if believed, will

sustain a conviction, or, which makes out a prima facie case,

that the question arises of considering facts of which the

burden of proof may lie upon the accused. The crucial

question in the case before us is: Has the prosecution

discharged its initial or general and primary burden of

proving the guilt of the appellant beyond reasonable doubt?

32.Furthermore, in a recent decision in the matter of Balvir

Singh v. State of Uttarakhand

15

, their Lordships of the

Supreme Court, reviewing their earlier decision on the point

14AIR 1974 SC 778

152023 SCC OnLine SC 1261 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

of Section 106 of the Evidence Act, have held that Section

106 has to be applied in criminal cases with care and

caution, and observed in paragraphs 41 to 48 as under:-

“41.Thus, from the aforesaid decisions of this

Court, it is evident that the court should apply

Section 106 of the Evidence Act in criminal cases

with care and caution. It cannot be said that it has

no application to criminal cases. The ordinary rule

which applies to criminal trials in this country that

the onus lies on the prosecution to prove the guilt

of the accused is not in any way modified by the

provisions contained in Section 106 of the Evidence

Act.

42.Section 106 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 of 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.

43. Section 106 obviously refers to cases where

the guilt of the accused is established on the

evidence produced by the prosecution unless the

accused is able to prove some other facts especially

within his knowledge which would render the

evidence of the prosecution nugatory. If in such a

situation, the accused gives an explanation which

may be reasonably true in the proved 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

circumstances, the accused gets the benefit of

reasonable doubt though he may not be able to

prove beyond reasonable doubt the truth of the

explanation. But if the accused in such a case

does not give any explanation at all or gives a false

or unacceptable explanation, this by itself is a

circumstance which may well turn the scale

against him. In the language of Prof. Glanville

Williams:

“All that the shifting of the evidential burden

does at the final stage of the case is to allow the

jury (Court) to take into account the silence of

the accused or the absence of satisfactor y

explanation appearing from his evidence.”

44. To recapitulate the foregoing : What lies at the

bottom of the various rules shifting the evidential

burden or burden of introducing evidence in proof

of one's case as opposed to the persuasive burden

or burden of proof, i.e., of proving all the issues

remaining with the prosecution and which never

shift is the idea that it is impossible for the

prosecution to give wholly convincing evidence on

certain issues from its own hand and it is therefore

for the accused to give evidence on them if he

wishes to escape. Positive facts must always be

proved by the prosecution. But the same rule

cannot always apply to negative facts. It is not for

the prosecution to anticipate and eliminate all

possible defences or circumstances which may

exonerate an accused. Again, when a person does

not act with some intention other than that which

the character and circumstances of the act suggest,

it is not for the prosecution to eliminate all the

other possible intentions. If the accused had a

different intention that is a fact especially within

his knowledge and which he must prove (see

Professor Glanville Williams—Proof of Guilt, Ch. 7,

page 127 and following) and the interesting

discussion—para 527 negative averments and para

528—“require affirmative counter-evidence” at page

438 and foil, of Kenny's outlines of Criminal Law,

17th Edn. 1958. 2023:CGHC:32590-DB

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45. But Section 106 has no application to cases

where the fact in question having regard to its

nature is such as to be capable of being known not

only by the accused but also by others if they

happened to be present when it took place. From

the illustrations appended to the section, it is clear

that an intention not apparent from the character

and circumstances of the act must be established

as especially within the knowledge of the person

whose act is in question and the fact that a person

found travelling without a ticket was possessed of a

ticket at a stage prior in point of time to his being

found without one, must be especially within the

knowledge of the traveler himself: see Section 106

of the Indian Evidence Act, illustrations (a) and (b).

46. A manifest distinction exists between the

burden of proof and the burden of going forward

with the evidence. Generally, the burden of proof

upon any affirmative proposition necessary to be

established as the foundation of an issue does

not shift, but the burden of evidence or the

burden of explanation may shift from one side to

the other according to the testimony. Thus, if the

prosecution has offered evidence which if believed

by the court would convince them of the

accused's guilt beyond a reasonable doubt, the

accused is in a position where he should go

forward with counter-vailing evidence if he has

such evidence. When facts are peculiarly within

the knowledge of the accused, the burden is on

him to present evidence of such facts, whether

the proposition is an affirmative or negative one.

He is not required to do so even though a prima

facie case has been established, for the court

must still find that he is guilty beyond a

reasonable doubt before it can convict. However,

the accused's failure to present evidence on his

behalf may be regarded by the court as

confirming the conclusion indicated by the

evidence presented by the prosecution or as

confirming presumptions which might have been

rebutted. Although not legally required to

produce evidence on his own behalf, the accused

may therefore as a practical matter find it

essential to go forward with proof. This does not

alter the burden of proof resting upon the

prosecution (Wharton's Criminal Evidence, 12th 2023:CGHC:32590-DB

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Page 29 of 37

(Cr.A.No.1405/2016)

Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Leland v.

State reported in 343 U.S. 790=96 L.Ed. 1302,

Raffel v. U.S. reported in 271 U.S. 294=70 L.Ed.

1054.

WHAT IS “PRIMA FACIE CASE” IN THE

CONTEXT OF SECTION 106 OF THE

EVIDENCE ACT?

47. The Latin expression prima facie means “at

first sight”, “at first view", or "based on first

impression". According, to Webster’s Third

International Dictionary (1961 Edn.), “prima facie

case” means a case established by “prima facie

evidence” which in turn means “evi-Ideuce

sufficient in law to raise a presumption of fact or

establish the fact in question unless rebutted”. In

both civil and criminal law, the term is used to

denote that, upon initial examination, a legal claim

has sufficient evidence to proceed to trial or

judgment. In most legal proceedings, one party

(typically, the plaintiff or the prosecutor) has a

burden of proof, which requires them to present

prima facie evidence for each element of the

charges against the defendant. If they cannot

present prima facie evidence, or if an opposing

party introduces contradictory evidence, the initial

claim may be dismissed without any need for a

response by other parties.

48. Section 106 of the Evidence Act would apply

to cases where the prosecution could be said to

have succeeded in proving facts from which a

reasonable inference can be drawn regarding

death.”

33.Bearing in mind the principles of law laid down by their

Lordships of the Supreme Court in the aforesaid judgments

(supra), it is quite vivid that the burden lies on the

prosecution to establish that the act alleged to constitute

murder was really the act of a person other than the

deceased. The burden is not cast upon an accused person of 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

proving that no crime has been committed. The prosecution

is not absolved from the duty of proving that a crime was

committed and the prosecution has to prove the offence

beyond reasonable doubt.

34.Coming to the facts of the case, it has already been held that

the prosecution has not been able to prove that death of

deceased Bhuneshwari was suicidal in nature, however, the

trial Court holding the death to be homicidal in nature

proceeded further and convicted the appellant with the aid of

Section 106 of the Evidence Act holding that dead body of

the deceased was found inside the bathroom along with the

appellant and the appellant has failed to explain in his

examination under Section 313 of the CrPC, under what

circumstances she died. However, it is well settled law that

Section 106 of the Evidence Act would not absolve the

prosecution from the duty of discharging its general or

primary burden of proving the prosecution case beyond

reasonable doubt and the prosecution has to discharge its

initial or general and primary burden to prove the guilt of the

accused beyond reasonable doubt. In the instant case, even

the death to be homicidal in nature has not been proved and

except proving that dead body of the deceased was found in

the bathroom along with the appellant, no further evidence

has been brought on record. In that view of the matter, the

trial Court is absolutely unjustified in convicting the 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

appellant with the aid of Section 106 of the Evidence Act, as

it is the case of the prosecution that the body of the deceased

was found inside the bathroom where the appellant was also

found injured in the pool of blood and he also suffered injury

which was sufficient to cause death in the ordinary course of

nature, as stated by Dr. Nohar Prasad Jangde (PW-1) in his

statement before the Court, as the appellant has deep cut

injury on left wrist in the size of 5 c.m. x 2 c.m. x 2 c.m.

which the prosecution has not explained as to how he has

suffered injury. In that view of the matter, application of

Section 106 of the Evidence Act to hold the appellant guilty

is totally contrary to the well settled law in this behalf.

35.Since the appellant has suffered injury as per the statement

of Dr. Nohar Prasad Jangde (PW-1) and proved by Dr. Nohar

Prasad Jangde (PW-1), which was sufficient to cause death,

and once serious injuries are found on the person of the

accused, as a principle of appreciation of evidence, it

becomes obligatory on the prosecution to explain the

injuries, so as to satisfy the court as to the circumstances

under which the occurrence originated. But before this

obligation is placed on the prosecution, two conditions must

be satisfied :

(1)that the injuries on the person of the accused must be

very serious and severe and not superficial ;

(2)that it must be shown that these injuries must have

been caused at the time of the occurrence in question. 2023:CGHC:32590-DB

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(See Jagdish v. State of Rajasthan

16

followed in the matter

of Hare Krishna Singh and others v. State of Bihar

17

.)

36.Now, the question is, whether the two conditions as held in

Jagdish (supra) followed in Hare Krishna Singh (supra),

have been fulfilled in the present case or not?

37.So far as condition No.1 is concerned, a careful perusal of

the statement of Dr. Nohar Prasad Jangde (PW-1) in

paragraph 1 read with paragraph 6 would show that the

injury suffered by the appellant was sufficient in the

ordinary course of nature to cause death. So far as the

second condition is concerned, as per Exs.P-24C & P-25C,

the appellant & the deceased both were found in the

bathroom of Draupati (PW-6) and veins of left hand wrists of

both of them suffered deep cut injuries and both were

admitted to the District Hospital, Rajnandgaon where

immediately during treatment, Bhuneshwari died, whereas

the present appellant was admitted and he was treated by

Dr. Nohar Prasad Jangde (PW-1) on 11-1-2015 at 4.15 a.m.,

who has proved the injury report Ex.P-1 of the appellant and

in the query report Ex.P-2 proved by Dr. Nohar Prasad

Jangde (PW-1), he has expressed opinion that it is not

possible to say whether the patient (appellant) has suffered

self-inflicted injury or it was caused by others, as it is the

case of the prosecution that the injury may have been

16(1979) 2 SCC 178

17(1988) 2 SCC 95 2023:CGHC:32590-DB

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(Cr.A.No.1405/2016)

caused by other(s). As per the statements of Thakur Ram

(PW-3), Dron Kumar (PW-4) & Deena Prasad (PW-5), both the

appellant & the deceased were found in injured condition in

the house of Draupati (PW-6) in bathroom, both have

suffered injuries and veins of their left hand wrists were

deeply cut. As such, the second condition that injuries must

have been caused at the time of occurrence, is clearly

satisfied. Thereafter, it was the prosecution to explain as to

how the appellant has suffered grevious injury sufficient in

the ordinary course of nature to cause death. It is the case

of the appellant before the trial Court that Exs.P-18 & P-21 –

love letters would establish that it is a case of suicide. In

that view of the matter, the prosecution was obliged to

explain the injury sustained by the appellant.

38.In the matter of Mohar Rai v. State of Bihar

18

, it has been

laid down that in a murder case, the non-explanation of the

injuries sustained by the accused at about the time of the

occurrence or in the case of altercation is a very important

circumstance from which the court can draw the following

inferences : (1) that the prosecution has suppressed the

genesis and the origin of the occurrence and has thus not

presented the true version ; (2) that the witnesses who have

denied the presence of the injuries on the person of the

accused are lying on a most material point and therefore

their evidence is unreliable ; and (3) that in case there is a

18AIR 1968 SC 1281 2023:CGHC:32590-DB

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defence version which explains the injuries on the person of

the accused it is rendered probable so as to throw doubt on

the prosecution case. As such, in the instant case, by not

explaining the injury sustained by the accused / appellant

which was sufficient to cause death as per Dr. Nohar Prasad

Jangde (PW-1) and which the appellant has suffered in the

same occurrence, it appears that the prosecution has

suppressed the genesis and the origin of the occurrence and

has not presented the true version.

39.The Supreme Court in the matter of Rajender Singh and

others v. State of Bihar

19

held that when injuries sustained

by accused are grievous, non-explanation of the same would

render the prosecution case suspicious, and observed as

under: -

“4.So far as the question whether non-

explanation of the injuries on accused Rajender

ipso facto can be held to be fatal to the prosecution

case, it is too well settled that ordinarily the

prosecution is not obliged to explain each injury on

an accused even though the injuries might have

been caused in the course of the occurrence, if the

injuries are minor in nature, but at the same time

if the prosecution fails to explain a grievous injury

on one of the accused persons which is established

to have been caused in the course of the same

occurrence then certainly the court looks at the

prosecution case with a little suspicion on the

ground that the prosecution has suppressed the

true version of the incident. In the case in hand

accused-appellant Rajender had one penetrating

wound, three incised wounds and one lacerated

wound and of these injuries, the penetrating wound

19(2000) 4 SCC 298 2023:CGHC:32590-DB

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on the left axillary area in the 5

th

intercostal space

½” x ⅓” x ¾” was grievous in nature as per the

evidence of the doctor, PW-3 who had examined

him. On the basis of the evidence of PW-3 as well

as PW-11 the courts have come to the conclusion

that there is no room for doubt that the appellants

and their men had injuries on their person on the

date of the occurrence. The question, therefore,

that remains to be considered is whether non-

explanation of the said injuries on accused-

appellant Rajender can form the basis of a

conclusion that the prosecution version is untrue.

In Mohar Rai and Bharath Rai v. State of Bihar

(AIR

1968 SC 1281) this Court had held that the failure

of the prosecution to offer any explanation

regarding the injuries found on the accused shows

that the evidence of the prosecution witness

relating to the incident is not true or at any rate,

not wholly true and further, those injuries

probabilise the plea taken by the accused persons.

But in Lakshmi Singh v. State of Bihar, (1976) 4

SCC 394, this Court considered Mohar Rai (supra)

and came to hold that non-explanation of the

injuries on the accused by the prosecution may

affect the prosecution case and such non-

explanation may assume greater importance where

the evidence consists of interested or inimical

witnesses or where the defence gives a version

which competes in probability with that of the

prosecution. The question was considered by a

three-Judge Bench of this Court in the case of

Vijayee Singh v. State of U.P., (1990) 3 SCC 190,

and this Court held that if the prosecution evidence

is clear, cogent and creditworthy and the court can

distinguish the truth from falsehood the mere fact

that the injuries are not explained by the

prosecution cannot by itself be a sole basis to reject

such evidence and consequently the whole case

and much depends on the facts and circumstances

of each case. In Vijayee Singh case (supra) the

Court held that non-explanation of injury on the

accused person does not affect the prosecution

case as a whole.” 2023:CGHC:32590-DB

Neutral Citation

Page 36 of 37

(Cr.A.No.1405/2016)

40.Finally coming to the facts of the case, it is quite vivid that

firstly, the prosecution has failed to prove that death of

Bhuneshwari was homicidal in nature, which the

prosecution was obliged for convicting a person of an offence

under Section 302 of the IPC to be homicidal in nature or

that it was suicidal in nature. Secondly, invocation of

Section 106 of the Evidence Act by the trial Court to draw

inference that the incident was within the special knowledge

of the appellant and deceased Bhuneshwari was in love with

the appellant is also factually and legally incorrect, as

Section 106 of the Evidence Act would not absolve the

prosecution from the duty of discharging its general or

primary burden of proving the prosecution case beyond

reasonable doubt. It is only when the prosecution has led

evidence which, if believed, will sustain a conviction, or

which makes out a prima facie case, that the question arises

of considering facts of which the burden of proof may lie

upon the accused. Thirdly, the injury on the person of the

accused was very serious and grievous in nature as proved

by Dr. Nohar Prasad Jangde (PW-1) who has clearly stated

that it was sufficient in the ordinary course of nature to

cause death and it has been established on record that the

said injury on the person of the appellant has been caused

at the time of occurrence in question and sufficient

foundation has been laid on behalf of the appellant in the

cross-examination and thereby as held in Mohar Rai 2023:CGHC:32590-DB

Neutral Citation

Page 37 of 37

(Cr.A.No.1405/2016)

(supra), it is quite clear that the prosecution has suppressed

the genesis and the origin of the occurrence and has not

presented the true version. As such, the defence of the

appellant that it is a case of suicide by the deceased, is

rendered probable so as to throw doubt on the prosecution

case. Therefore, for all these three reasons stated herein-

above, we are of the considered opinion that the appellant is

entitled for acquittal on the basis of benefit of doubt.

41.In view of the aforesaid discussion, we are unable to sustain

the conviction of the appellant under Sections 302 & 201 of

the IPC. As such, conviction and sentences imposed upon

him under Sections 302 & 201 of the IPC are liable to be set-

aside and are hereby set-aside. The appellant is acquitted of

the said charges extending him the benefit of doubt. Since

he is in jail, he be set at liberty forthwith if not required to be

detained under any other process of law.

42.The criminal appeal 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 and action, if any. A certified copy of

the judgment may also be sent to the concerned Jail

Superintendent forthwith wherein the appellant is suffering

the jail sentence.

Sd/- Sd/-

(Sanjay K. Agrawal) (Sanjay Agrawal)

Judge Judge

Soma 2023:CGHC:32590-DB

Neutral Citation