Domar Singh Sahu Vs State of Chhattisgarh

1. The appellant has preferred this appeal under 374(2) of the Code of Criminal Procedure, 1973 (for short, the Cr.P.C.) questioning the impugned judgment dated 15.12.2022 passed by the learned Additional Sessions Judge, Gariyaband, District Gariyaband, in Sessions Trial No. 19/2018, by which the appellant has been convicted for the offence

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punishable under Section 302 of the Indian Penal Code ( for short, the IPC ) and sentenced to undergo rigorous imprisonment for life with fine of Rs. 1000/- and in default of payment of fine, to further undergo 6 months rigorous imprisonment.

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2. The appellant/accused was charged for the offence punishable under Section 302 of IPC alleging that on 17.01.2018 at about 06:00 a.m., in village Burjabahal under Police Station Devbhog, District Gariaband assaulted her wife Chinebai on the head with a square iron blowpipe ( used for blowing air in the clay stove ), causing her death.

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3. The admitted fact in the case is that the deceased Chhinebai ( hereinafter referred to as ‘the deceased’ ) was the wife of the appellant. The appellant is a deaf and dumb person who cannot speak or hear and communicates only through gestures.

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4. The prosecution case in brief is that on 17.01.2018, the informant Tankdhar Sahu (PW-1) had made an oral report in Devbhog Police Station to the effect that he is a resident of village Burjabahal and is a neighbor of the appellant. Both the appellant and the deceased lived together. On 17.01.2018, at around 06:00 a.m., when he came out of his house, appellant’s elder daughter Devki (PW-4) was shouting outside her house that " Run, run, my father is beating my mother " upon which he ran towards the appellant’s house. Devki (PW-4) informed him that the appellant was beating her mother by closing the door from inside. At that time, the sound of beating and shouting could be heard inside. Even after asking to open the door, the appellant was not opening the door, after some time, when the appellant opened the door and came out, he had a square iron pipe in his hand. Tankdhar (PW-1) asked him as to why he was beating his wife, then the appellant gestured and informed that he

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had killed his wife and thereafter threw the iron pipe there and ran towards the forest. Then Tankdhar (PW-1) and Devki (PW-4) went inside and saw the deceased lying unconscious near the stove. There was a serious head injury and blood was oozing out. When 108 Ambulance was called, the doctor present in the vehicle declared the deceased dead. The appellant assaulted his wife by hitting her on the head with a square iron pipe with the intention of killing her. He told the villagers about this incident.

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5. On the report of the above incident, a crime was registered against the appellant under Section 302 IPC at Police Station Devbhog and the case was taken up for investigation.

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6. During investigation, the appellant was found to be deaf and dumb, regarding which a Panchnama was prepared. The appellant was arrested as per arrest memo Exhibit P/08 and information regarding the same was given to his family members vide Exhibit P/13. Memorandum statement (Exhibit P/09) of the appellant in presence of witnesses was recorded. The shirt worn by the appellant at the time of the incident was seized as per seizure memo Exhibit P/11. Blood stained soil and plain soil were seized from the scene of the incident as per seizure memo Exhibit P/22 and on being presented by the informant Takdhar Sahu (PW-1), the iron square pipe used in the crime was seized as per seizure memo Exhibit P/10. The inquest of the deceased was prepared vide Exhibit P/4 and the post mortem of the dead body was conducted and its report prepared vide Exhibit P/06 and the body of the deceased was handed over to his family vide dead body supurdnama (Exhibit P/5).

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7. During the course of investigation, the local Patwari prepared Panchnama (Exhibit P/15) of the incident site. The Police prepared a

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spot map (Exhibit P/7) and also sent a memo to the Tahsildar requesting preparation of the spot map vide memo (Exhibit P/17). The iron pipe seized in the case was sent to CHC Devbhog for examination. The seized materials were sent to State Forensic Science Laboratory Raipur for chemical testing and the statements of witnesses were recorded.

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8. After complete investigation in the case, charge-sheet was presented against the appellant for the offence under Section 302 IPC before the learned Judicial Magistrate First Class, Devbhog, District Gariyaband and the case was committed to the Court of Sessions vide order dated 24.03.2018 and the case was registered as Sessions Trial No. 19/2019.

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9. Charges were framed against the appellant for the offence under Section 302 of the IPC which was denied and the appellant prayed for trial.

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10. In order to bring home the offence, the prosecution had examined as many as 13 witnesses namely Tankdhar Sahu (PW-1), Neha Uikey (PW2), Dr. Satyendra Markandey (PW-3), Ku. Devki Sahu (PW-4), Chhavilal Nagesh (PW-5), Nehru Lal Porte (PW-6), Smt. Inu Bai (PW-7), Jairam Sahu (PW-8), Somnath Sahu (PW-9), Babulal Sahu (PW-10< Devendra Nagesh (PW-10A), Makund Sahu (PW-11), Rizwan Khan (PW-12) and P.P.Singh (PW-13) and exhibited as many as 49 exhibits.

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11. The statement of the accused under Section 313 Cr.P.C. was recorded wherein the appellant/accused expressed ignorance about the circumstances proved by the prosecution and stated that he was not at home and when he returned home at about 2 p.m. he found his wife dead and that he has been falsely implicated. In support of his case, he got the police statement of Devendra (PW-10A) and Babulal (PW-10) exhibited as Exhibit D/1.

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12. The learned trial Judge, after considering the evidence on record, convicted the appellant/accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict.

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13. Mr. Shalvik Tiwari, learned counsel for the appellant submits that the appellant is a deaf and dumb person. There is nothing on record to show that the appellant had committed the crime in question. The appellant had no motive to commit the crime. There is no eye witness to the incident and the conviction is based on circumstantial evidence. Further, there are contradictions and omissions in the statement of the prosecution witness. Some of the prosecution witnesses have turned hostile and not supported the prosecution case. Hence, the appeal deserves to be allowed.

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14. On the other hand, Mr. Shailendra Sharma, learned Panel Lawyer appearing for the State/respondent submits that the prosecution has fully established that it was the appellant alone who had committed the crime in question. Minor variations in the deposition of the witnesses cannot shake the credibility of the statement of the witnesses. The medical evidence clearly supports the case of the prosecution. The dead body of the deceased was found inside the house of the appellant and it was for the appellant to explain how the dead body of the deceased was found in his house. The judgment of conviction and sentence awarded by the learned trial Court being just and proper, needs no interference and the appeal deserves .

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15. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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16. There is no dispute with respect to the fact that the death of the deceased was homicidal in nature which is evident from the postmortem report (Exhibit P/6) lacerated wound on right frontal region of head 4 c.m. x .5 c.m. with bleeding present on the affected wound, compound fracture on left parietal region with brain material coming out from wound with blood. Dr. Satyendra Markandey (PW-3) conducting the postmortem has opined that the cause of death was coma due to head injury which led to massive shock followed by death and the nature of death was homicidal and the injuries were caused by hard and blunt object and were grievous in nature.

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17. The learned trial Court, relying upon the statement of Dr. Satyendra Markandey (PW-3) has clearly come to the conclusion that death of deceased was homicidal in nature. The said finding recorded by the learned trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been disputed by the learned counsel for the appellant. We hereby affirm the said finding.

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18. The question for consideration for this Court would be, whether the appellant is the author of the crime?

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19. Tankdhar Sahu (PW-1) is the neighbour of the appellant and the deceased and belong to the same community. He stated that the appellant and his wife used to live with their two daughters aged 12-13 years and 7-8 years. On the date of incident at about 6 a.m. both the daughters came to him and stated that the appellant had sent them out of the house and closed the door from inside and was assaulting their mother and that he should help them. Upon this, he went to the house of appellant and heard the sound of assault being made. When he pushed

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the door of the house, the appellant who was holding an iron pipe, threw the same and ran away. On going inside, he saw that the deceased had fallen near the clay stove ( Chulha ) and blood was oozing out from her head. He called the 108 Ambulance and gave water to drink and informed about the incident to people living nearby. At about 7-7:30 a.m. the Ambulance reached and the Doctor examined the deceased and declared her dead. Thereafter, he alongwith Chabilal, Nehrulal went to Devbhog Police Station and lodged the FIR.

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20. Ku. Devki Sahu (PW-4) is the child witness aged about 14 years. She stated that in the evening at about 6 p.m. when her mother was lighting the clay stove and was warming herself, at that time, she and the appellant were also warming themselves. The appellant asked this witness by gesture to go out of the room and when she came out, the appellant locked the door from inside. She was standing outside the house when she heard the sound of beating with a stick and she went to the neighbour’s house and informed Tankdhar (PW-1) about the incident. When Tankdhar (PW-1) came to the house of the appellant and pushed the door, the appellant opened the door and ran away throwing the blow pipe and her mother was lying near the clay stove.

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21. Chhavilal Nagesh (PW-5) is the resident of the same village. He is the husband of the Up-Sarpanch of that village. When he reached the place of incident on being informed,he saw that the dead body of the deceased was lying in her own house and there were injuries on the head and blood was smeared on the floor. He alongwith other villagers went to the Police Station and reported the matter. Nehru Lal Porte (PW-6) stated that he was called by Tankdhar (PW-1) stating that the wife of the appellant had expired. When they reached, the found the dead body of the deceased

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with blood spread all over the floor. The appellant was not in the house and the daughter of the appellant was not in a position to state anything.

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22. Smt. Inu Bai (PW-7) is the sister-in-law (Bhabhi) of the appellant. She stated that on the date of incident, at about 5 a.m. she heard the hue and cry of the daughter of the appellant and when she reached the house of the appellant, she found the dead body of the deceased. The daughter, Devki informed her that her mother was killed by her father i.e. the appellant.

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23. Jayram Sahu (PW-8) has stated that he is the neighbour of the appellant. On the date of incident, at about 6 a.m. he heard the screaming of the brother of the appellant Nirakar. When he reached the house of the appellant, they pushed the door of the house and asked the appellant to open the door. The appellant opened the door and ran towards the forest. When they reached inside, they found the deceased lying dead. They called the Ambulance. He was informed by the daughter of the appellant that the appellant had killed her mother.

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24. Somnath Sahu (PW-9) is the brother of the appellant. Though he stated that he was informed by the daughter of the appellant that the deceased was done to death by the appellant. When he went inside the house, he found the dead body of the deceased lying. So far as seizure and preparation of spot map are concerned, he has turned hostile, though he has admitted signing the seizure memo.

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25. Babulal Sahu (PW-10) though had admitted that he had not sen the incident happening with his own eyes but he received the information about the incident on mobile phone. He had also reached the place of incident and seen the deceased lying in the pool of blood and that Ambulance had reached that place. He admitted that police had seized

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one iron pipe from Tankdhar (PW-1) and also the blood stained T-shirt from the appellant.

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26. Devendra Nagesh (PW-10A) is the Kotwar of the village. After the incident, this witness was called by the villagers who was given the notice by the police for postmortem of the deceased. He was informed by Ghanshyam Sahu that the accused has murdered his wife and ran away. He is also the witness to inquest (Exhibit P/4), spot map prepared by the Patwari (Exhibit P/16) and spot panchnama (Exhibit P/15).

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27. Makund Sahu (PW-11) is the father of the deceased and father-in-law of theappellant. On the date of incident, the people of village Burjabahal called him over phone and informed him that his daughter was in a serious condition. When he reached the village on his bi-cycle, he found the dead body of the deceased in her home. The relatives of the appellant and the villagers informed him that the appellant had committed murder of the deceased and ran away. Devki Bai (PW-4) who is the maternal grand-daughter of the this witness, had informed him that the appellant had assaulted the deceased with the blow pipe on the head and caused murder.

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28. Neha Uikey (PW-2) is the Patwari who had prepared the spot map (Exhibit P/16) and panchnama (Exhibit P/17).

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29. The seized iron pipe was sent to the FSL for examination alongwith other articles. The articles seized were marked as Article A and B i.e. soil, C- shawl, seized from the place of incident, D-iron pipe seized from the informant (PW-1), E-blouse of the deceased, F-T Shirt of the appellant. As per the report (Exhibit P/31), human blood was found on Articles A, C, D, E and F.

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30. A query was made by the police with respect to the seized iron pipe and in response to which Dr. Satyendra Markandey (PW-3) has stated that the injuries sustained by the deceased could have been caused by the hollow iron pipe.

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31. As the dead body of the deceased was found in her own house in which the appellant was also living with his two minor daughters, it was for the appellant to explain the said situation. The appellant has not discharge his initial burden of proving the fact that was especially within his knowledge. The appellant ought to have explained as to how the dead body of the deceased was found inside his house.

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32. Section 106 of the Indian Evidence Act, 1872, states as under:

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“ 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. ”

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33. 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.

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34. In the matter of Shambhu Nath Mehra v. The State of Ajmer¹ , their Lordships of the Supreme Court have held that the general rule that in a

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1 AIR 1956 SC 404

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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: -

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“ 11. … The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an 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). ”

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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.

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35. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v.

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State of Bihar² in which it has been held by their Lordships of the Supreme Court as under:

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“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.

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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.”

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36. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab³ , while considering the provisions contained in Sections 103 and 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will

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2 (2021) 10 SCC 725

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3 AIR 1956 SC 460

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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.

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37. The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar⁴ and it has been held that burden of proving the case against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence.

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38. The appellant has further taken a false plea of alibi stating that he was not at home till 2 p.m. and when he returned home, he found the deceased lying dead. The appellant has not explained as to where he was at the time of commission of the offence.

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39. In the light of aforesaid discussion, we are inclined to endorse the conclusion arrived at by the learned trial Court convicting the appellant on the basis of evidence adduced by the prosecution witnesses. Therefore, conviction of the appellant for the offence under Section 302 of the IPC as well as the sentence imposed upon him by the learned trial Court is well merited and does not call for any interference by this Court.

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40. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed.

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41. The appellant is stated to be in jail. He shall serve out the remaining part of the sentence as has been awarded to him by the learned trial Court.

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4 AIR 1974 SC 778

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42. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentences to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.

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43. Let a certified copy of this judgment alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any.

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Sd/Sd/(Bibhu Datta Guru) (Ramesh Sinha) JUDGE CHIEF JUSTICE

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Amit

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AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.06.27 19:18:07 +0530

Domar Singh Sahu v. State of Chhattisgarh

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Domar Singh Sahu v. State of Chhattisgarh

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