Rupesh Kamar vs State Of Chhattisgarh on 20 July, 2026

    0
    6
    ADVERTISEMENT

    Chattisgarh High Court

    Rupesh Kamar vs State Of Chhattisgarh on 20 July, 2026

    Author: Ramesh Sinha

    Bench: Ramesh Sinha

                                                             1
    
    
    
    
                       CGHC010028992022                                    2026:CGHC:30605-DB
    
                                                                                           NAFR
    
                                    HIGH COURT OF CHHATTISGARH AT BILASPUR
    
                                                  CRA No. 223 of 2022
    
                       1 - Rupesh Kamar S/o Sagan Kumar Aged About 25 Years R/o Village
                       Madeli P.S. Magarlod, District Dhamtari (C.G.)
    
    
                       2 - Shravan Kamar S/o Ganesh Kamar Aged About 30 Years R/o Village
                       Madeli P.S. Magarlod, District Dhamtari (C.G.)
    
    
                       3 - Dasari Bai W/o Rupsingh Kamar Aged About 28 Years R/o Village
                       Madeli P.S. Magarlod, District Dhamtari (C.G.)
                                                                                   ... Appellants
    
                                                           versus
    
                       State Of Chhattisgarh Through The Station House Officer, Police Station
                       Magarlod, District Surguja (C.G.)
                                                                                  --- Respondent
    
                                    (Cause title taken from Case Information System)
    
                       For Appellants                 :    Mr. Manoj Kumar Jaiswal, Advocate
    
                       For Respondent/State           :    Mr. Sumit Singh, Deputy A.G.
    
                                      Hon'ble Shri Ramesh Sinha, Chief Justice
                                     Hon'ble Shri Ravindra Kumar Agrawal, Judge
    
                                                  Judgment on Board
                       Per Ramesh Sinha, Chief Justice
    
                       20/07/2026
    VED
    PRAKASH
    DEWANGAN           1.    Though the matter was listed for consideration on I.A. No. 02/2026,
    Digitally signed
    by VED PRAKASH
    DEWANGAN                 which is the second application for suspension of sentence and grant
    Date: 2026.07.23
    18:31:46 +0530
                                          2
    
    
    
         of bail, however, considering the fact that, appellants are in jail since
    
         23.03.2020, with the consent of the parties the appeal is being finally
    
         heard. Accordingly, I.A. No. 02/2026 is disposed of.
    
    
    2.   The present appeal has been filed under Section 374(2) of the Code
    
         of Criminal Procedure, 1973 against the impugned judgment of
    
         conviction and sentence dated 10.12.2021, passed by learned
    
         Additional Sessions Judge, Camp Court, Kurud, District Dhamtari, in
    
         Sessions Case No. 35 of 2020, whereby the accused persons have
    
         been convicted under Sections 302, 34 of the IPC and sentenced
    
         them R.I. for life with fine of Rs. 2000/- (each of the accused), in
    
         default of payment of fine, additional R.I. for six months (to each of
    
         the accused).
    
    
    3.   The case of the prosecution in brief is that, on 23.03.2020 at 10:05
    
         a.m, on the intimation of Makhanlal Netam (PW-1), a merg intimation
    
         (exhibit P-1) was recorded by the police of police station Magarlod
    
         that at about 8:00 a.m. he was informed Shiv Kamar that the
    
         deceased Roopsingh Kamar is lying dead in his house, and when he
    
         visited his house along with Bhushanlal Nagarchi (PW-2), Kotwar of
    
         the village, he saw his dead body having black mark on his neck.
    
         Inquest (exhibit P-5) was prepared by the police in presence of the
    
         witnesses and then the dead body of the deceased was sent for its
    
         postmortem to Govt. Hospital, Magarlod, where Dr. P. Janbandhu
    
         (PW-6) conducted postmortem and gave his report (exhibit P-21).
    
         While conducting postmortem, the doctor found head bone fractured
    
         dislocation of first and second cervical vertebra, ligature mark
                                        3
    
    
    
         present on front of neck and has opined that the cause of death is
    
         cardio-respiratory arrest, mode of death is asphyxia due to ante-
    
         mortem throttling and death appears to be homicidal in nature. Spot
    
         map (exhibit P-2) was prepare by the police and spot panchnama
    
         (exhibit P-6) and spot map (exhibit P-33) were prepared by the
    
         patwari. Statements of the witnesses under Section 161 of CRPC
    
         were recorded. The accused persons were taken into custody and
    
         their memorandum statements exhibit P-8 of Rupesh Kamar, exhibit
    
         P-9 of Shravan Kamar and exhibit P-10 of Dasri Bai have been
    
         recorded. Based on the memorandum statement of Rupesh Kamar,
    
         one iron wire 92 cm of length and 0.5 cm thick has been seized from
    
         him vide seizure memo (exhibit P-11). FIR (exhibit P-29) was
    
         registered for the offence under Section 302 of IPC. The seized iron
    
         wire was sent for its query report to the doctor, who gave his report
    
         (exhibit P-23) and opined that the injury found on the neck of the
    
         deceased would have been caused by the said iron wire.
    
    
    4.   After completion of usual investigation, charge sheet was filed
    
         against the accused persons for the offence under Sections 302, 34
    
         of IPC before the learned Judicial Magistrate First Class, Kurud,
    
         District Dhamtari. The case was committed to the learned Sessions
    
         Court, Dhamtari, from where it has been transferred to the learned
    
         trial Court for its trial.
    
    
    5.   The learned Trial Court framed charges against the accused persons
    
         under Sections 302, 34 of the IPC. The accused persons denied the
    
         charge and claimed trial. In order to prove the charge against the
                                         4
    
    
    
         accused persons, the prosecution has examined as many as 12
    
         witnesses. The statements of the accused persons under Section
    
         313 of CRPC have also been recorded, in which they denied the
    
         circumstances that appears against them, pleaded innocence and
    
         have submitted that they have been falsely implicated in the offence.
    
    
    6.   After appreciation of oral as well as documentary evidence led by the
    
         prosecution, the learned trial Court has convicted and sentenced the
    
         accused persons under Sections 302, 34 of the IPC and sentenced
    
         them as mentioned in the earlier part of this judgment. Hence this
    
         appeal.
    
    
    7.   Learned counsel for the appellants would submit that the prosecution
    
         has failed to prove its case beyond reasonable doubt. There are
    
         material omissions and contradictions in the evidence of the
    
         prosecution witnesses and their statements are inconsistent. There is
    
         no eyewitness to the incident and the circumstances are very weak
    
         and did not corroborate with each other. The chain of circumstance
    
         has also not been proved. The case of the prosecution is based on
    
         the memorandum statement of the accused persons, which is
    
         inadmissible piece of evidence. The motive to commit murder of the
    
         deceased has also not been proved by the prosecution. Only on
    
         suspicion, the appellants have been convicted on the ground that
    
         some previous dispute occurred between them, however, there is no
    
         evidence or previous quarrel or any report. The independent
    
         witnesses have also not supported the prosecution case and
    
         therefore, the evidence produced by the prosecution are not
                                            5
    
    
    
          sufficient to hold them guilty for the alleged offence. Therefore, the
    
          appellants are entitled for acquittal.
    
    
    8.    On the other hand, learned counsel for the State opposes the
    
          submissions made by learned counsel for the appellants and have
    
          submitted that there is sufficient evidence available in the case
    
          against the appellants that they committed the murder of the
    
          deceased Roopsingh Kamar. On the date of incident, they were with
    
          the deceased and there is sufficient evidence of their previous
    
          quarrel and the deceased after undergoing the jail sentence released
    
          from there about a year back. During his incarceration, the appellant
    
          No.1 and appellant No.3 (wife of the deceased) were residing
    
          together, which was the motive to commit the murder of the
    
          deceased. The appellants were residing in the house, where the
    
          dead body of the deceased was found in injured condition and his
    
          death was found to be homicidal. The appellants have not explained
    
          about the circumstance under which the deceased died and failed to
    
          discharge    their   burden. Therefore,   there   are   sufficient   and
    
          overwhelming evidence against the appellants and the complete
    
          chain of circumstances has been proved by the prosecution by
    
          leading cogent and clinching evidence. There is no merit in the
    
          appeal filed by the appellants and the same is liable to be dismissed.
    
    
    9.    We have heard learned counsel for the parties and perused the
    
          record.
    
    
    10.   So far as the homicidal death of the deceased is concerned, the
    
          learned trial Court has relied upon the evidence of PW-6/Dr. P.
                                          6
    
    
    
          Janbandhu, who conducted the postmortem of the dead body of the
    
          deceased. He stated in his evidence that on 23.03.2020, he
    
          conducted the postmortem of the dead body of the deceased and
    
          found his hyoid bone fractured, dislocation of cervical vertebra No. 1
    
          and 2 and ligature mark present on the front of neck. He opined that
    
          the cause of death is cardio-respiratory arrest, nature of death is
    
          asphyxia due to ante-mortem throttling and death appears to be
    
          homicidal in nature. He proved the postmortem (exhibit P-21) and
    
          short postmortem report (exhibit P-22). He also proved the query
    
          report (exhibit P-23) that the injuries found on the body of the
    
          deceased would have been caused by the said iron wire, which was
    
          sent for its examination. In cross-examination he admitted that,
    
          except this ligature mark on the neck of the deceased, there was no
    
          other external injuries found on the body of the deceased. Nothing
    
          substantial could be extracted from the evidence of the doctor to
    
          prove that the deceased has died not from the physical violence, but
    
          by otherwise.
    
    
    11.   PW-2/Bhushan Nagarchi, PW-4/Roshan Lal, PW-8/Shiv Kamar and
    
          PW-9/Rooplal are the witnesses to the inquest of the dead body of
    
          the deceased (exhibit P-5). They proved the inquest by stating that
    
          they saw the neck injury on the dead body of the deceased. From
    
          these evidences the learned trial Court has considered that the death
    
          of the deceased was homicidal in nature has been proved by the
    
          prosecution by leading cogent evidence and the defence could not
    
          be able to rebut the said evidence. From the evidence available on
    
          record, we are also concur with the consideration of the learned trial
                                            7
    
    
    
          Court that the deceased died due to ante-mortem throttling and his
    
          death was homicidal in nature.
    
    
    12.   With respect to involvement of the appellants in the offence in
    
          question, we examined the evidence available on record.
    
    
    13.   PW-1/Makhanlal Netam, who lodged the merg intimation has stated
    
          in his evidence that on the date of incident, he was being informed by
    
          Shiv Kamar that the deceased Roopsingh Kamar has died and when
    
          he went to his house, he saw his dead body and found injury on his
    
          neck. On being suspension of murder, he lodged merg intimation to
    
          the police. The accused persons confessed their guilt that they
    
          committed the murder of the deceased by throttling through iron wire.
    
          He also stated that the deceased Roopsingh released from jail about
    
          a year back. At the time, when he was in jail, Dasri Bai and Rupesh
    
          were living together. Nothing substantial could be extracted from his
    
          cross-examination by the defence, though he admitted that the police
    
          personals have informed him that the appellants have committed the
    
          murder of the deceased.
    
    
    14.   PW-2/Bhushanlal Nagarchi, Kotwar of the village, has stated in his
    
          evidence that during the proclamation in the village when he had
    
          gone towards the house of the deceased, Shiv Kamar informed him
    
          about the incident. When he along with Sarpanch had gone there,
    
          they saw the dead body of the deceased and on suspicion they
    
          lodged report to the police. On being interrogation from the
    
          appellants, they confessed in his presence that, they committed
    
          murder of the deceased Roopsingh. Roopsingh was released from
                                           8
    
    
    
          jail 10-15 days before and all of them were residing together. Rupesh
    
          was residing with his sister-in-law Dasri Bai. In cross-examination he
    
          stated that, when he went on the spot and asked from Dasri Bai, she
    
          could not give any plausible explanation about his death. He denied
    
          the suggestion that, it is the police person, who gave the information
    
          that the appellants committed murder of the deceased.
    
    
    15.   PW-3/Santosh has stated in his evidence that, during interrogation
    
          the accused persons admitted that they have committed the murder
    
          of the deceased by strangulate him. They also disclosed that Rupesh
    
          was having illicit relation with Dasri Bai and therefore, they committed
    
          murder of Roopsingh. He proved the memorandum statements
    
          (exhibit P-8, P-9 and P-10) and seizure of iron wire (exhibit P-11).
    
          After declaring him hostile, when he was cross-examined by the
    
          prosecution, he admitted that the deceased Roopsingh had earlier
    
          assaulted Shravan Kamar, who is the brother of Dasri Bai for which
    
          he was sent to jail and Dasri Bai was thereafter residing with Rupesh
    
          as his wife. He further admitted that in the eve of the date of incident,
    
          the appellants consumed liquor together and prepared a plan to
    
          eliminate the deceased. He further admitted that after consuming
    
          liquor, they took iron wire near from the field and came back to the
    
          house, where the deceased was sleeping. He further admitted that
    
          the accused Rupesh sat on head side, Shravan Kamar sat on his
    
          chest and Dasri Bai holds his both legs and then Rupesh tied the iron
    
          wife until his death. Thereafter they concealed the iron wire, near the
    
          Dumarmali drain. In cross-examination though he admitted that, he
    
          sent the documents on the instance of the police at police station and
                                         9
    
    
    
          no seizure has been made from the accused persons, however, the
    
          presence of the accused persons together in the house could not be
    
          rebutted by the defence from his cross-examination.
    
    
    16.   PW-4/Roshanlal is also a person, who had gone to the house of the
    
          deceased and witnessed inquest (exhibit P-5).
    
    
    17.   PW-5/Dharamraj has stated in his evidence that, on being
    
          interrogation the memorandum statements of the accused persons
    
          (exhibit P-8, P-9 and P-10) were recorded and iron wire has been
    
          seized vide seizure memo (exhibit P-11). This witness has also
    
          declared hostile and when he was cross-examined by the
    
          prosecution, he admitted the signature over the documents of
    
          memorandum and seizure. He is the brother and brother-in-law of the
    
          accused persons. In cross-examination he resiled from his statement
    
          made before the police and shown ignorance from any seizure.
    
    
    18.   PW-7/Kishan is the son of the deceased. He stated in his evidence
    
          that the accused Rupesh is his uncle, Shravan is his maternal uncle
    
          and Dasri Bai is his mother. He did not know the reason of death of
    
          his father. This witness has also declared hostile and when he cross-
    
          examined by the prosecution, he admitted that at the time when his
    
          father had gone to jail, his uncle released from jail and started
    
          residing with them. After some days, his father too has been released
    
          from jail. At the time of the incident, he had gone to his maternal
    
          grandmother's house at Darripara. From the evidence of this witness,
    
          it transpires that there exists previous dispute between Roopsingh
                                         10
    
    
    
          and Rupesh and the appellant No.1 was residing with the appellant
    
          Dasri Bai, when his father (deceased) had gone to jail.
    
    
    19.   PW-8/Shiv Kamar has stated in his evidence that, a day before the
    
          date of incident, he had gone to Singhpur and when he came back
    
          from there, he found Dasri Bai crying. When he asked about her
    
          crying, she informed that Roopsingh has died and then he saw the
    
          dead body of Roopsingh in the house. Thereafter, he proceeded for
    
          lodging of the report to the police. This witness has also declared
    
          hostile and then cross-examined by the prosecution, in which he
    
          stated that at the time of incident, Dasri Bai was crying in her house
    
          and when he had gone there, he saw the dead body and injury on his
    
          neck and when he asked about the incident, Dasri Bai did not
    
          disclose anything and then they informed the police. On being
    
          interrogation by the police, she disclosed that she along with Rupesh
    
          and Shravan committed his murder and Rupesh and Shravan fled
    
          away. He also admitted that on being search, Rupesh and Shravan
    
          were found in the village and they too have admitted that they
    
          committed the murder of the deceased. In cross-examination he
    
          admitted that, when he came back from village Singhpur, the police
    
          has already taken the accused persons with them and he came to
    
          know about the incident from other persons. From his cross-
    
          examination despite the shaky cross-examination, the presence of
    
          the appellant Dasri Bai in the house could not be rebutted by the
    
          defence.
                                         11
    
    
    
    20.   PW-10/Doman Tarak, PW-11/Subhashlal, PW-12/Nageshwar Sahu
    
          are the procedural witness, who assisted in the investigation of the
    
          offence and they proved the investigation, which they conducted.
    
    
    21.   From the evidence of these witnesses, the prosecution is able to
    
          prove that on the date of incident, the accused persons were present
    
          in the house, where the dead body of the deceased was found in
    
          injured condition and his death was homicidal. The accused persons
    
          consumed liquor together and thereafter committed murder of the
    
          deceased by throttling with the help of an iron wire. There was the
    
          motive to commit murder that earlier when the deceased had gone to
    
          jail, the appellant No.1 developed illicit relation with the appellant
    
          No.3, who is the wife of the deceased and when the deceased
    
          released from jail, he objected. The appellant No.2 Shravan is the
    
          brother of the appellant No.3 and he also participated in commission
    
          of the murder to the appellants No.1 and 3. The dead body of the
    
          deceased was found inside the house, where they were residing and
    
          there is no explanation from them, under what circumstance, the
    
          deceased died due to homicidal death.
    
    
    22.   In the case of Balvir Singh v. State of Uttarakhand, (2023) 16 SCC
    
          575, the Hon'ble Supreme Court in Para 34 to 40 has held as under:
    
    
                      "34. Section 106 of the Evidence Act, states as
                      under:
    
                            "106. Burden of proving fact especially
                            within knowledge. When any fact is
                            especially within the knowledge of any
                            person, the burden of proving that fact is
                           12
    
    
    
         upon him. Illustration (a) When a person
         does an act with some intention other than
         that        which      the     character        and
         circumstances of the act suggest, the
         burden of proving that intention is upon
         him. (b) A is charged with travelling on a
         railway without a ticket, The burden of
         proving that he had a ticket is on him.
    
    
    35. Section 106 of the Evidence Act referred to
    above provides that when any fact is especially
    within the knowledge of any person, the burden
    of proving that fact is upon him. The word
    "especially" means facts that are pre-eminently
    or exceptionally within the knowledge of the
    accused. The ordinary rule that applies to the
    criminal trials that the onus lies on the
    prosecution to prove the guilt of the accused is
    not in any way modified by the rule of facts
    embodied in Section 106 of the Evidence Act.
    Section 106 of the Evidence Act is an exception
    to Section 101 of the Evidence Act. Section 101
    with its illustration (a) 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 the facts
    which are, "especially within the knowledge of
    the accused and which, he can prove without
    difficulty or inconvenience.
    
    
    36. In Shambhu Nath Mehra v. The State of
    Ajmer reported in AIR 1956 SC 404, this Court
                             13
    
    
    
    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 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 & 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 All ER 36 at p. 49
            (B)."
    
    
    37. The aforesaid decision of Shambhu Nath
    (supra) has been referred to and relied upon in
    Nagendra Sah v. State of Bihar reported in
    (2021) 10 SCC 725, wherein this Court observed
    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
                      14
    
    
    
         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." (Emphasis
         supplied)
    
    
    38. In Tulshiram Sahadu Suryawanshi and
    Another v. State of Maharashtra reported in
    (2012) 10 SCC 373, 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
                    15
    
    
    
    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. It is useful to quote the following
    observation in State of W.B. v. Mir
    Mohammad Omar [(2000) 8 SCC 382 :
    2000 SCC (Cri) 1516]: (SCC p. 393, para
    38)
    
    
    "38. Vivian Bose, J., had observed that
    Section 106 of the Evidence Act is
    designed to meet certain exceptional
                              16
    
    
    
            cases in which it would be impossible for
            the prosecution to establish certain facts
            which are particularly within the knowledge
            of the accused. In Shambu Nath Mehra v.
            State of Ajmer [AIR 1956 SC 404 : 1956
            Cri LJ 794] the learned Judge has stated
            the legal principle thus: (AIR p. 406, para
            11)
    
    
            '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.'""
            (Emphasis supplied)
    
    
    39. In Trimukh Maroti Kirkan v. State of
    Maharashtra reported in (2006) 10 SCC 681, this
    Court    was      considering            a     similar        case     of
    homicidal death in the confines of the house.
    The     following    observations                 are    considered
    relevant in the facts of the present case:
    
    
            "14. If an offence takes place inside the
            privacy     of        a        house       and    in     such
                  17
    
    
    
    circumstances where the assailants have
    all the opportunity to plan and commit the
    offence at the time and in circumstances of
    their choice, it will be extremely difficult for
    the prosecution to lead evidence to
    establish the guilt of the accused if the
    strict principle of circumstantial evidence,
    as noticed above, is insisted upon by the
    courts. A Judge does not preside over a
    criminal trial merely to see that no
    innocent man is punished. A judge also
    presides to see that a guilty man does not
    escape. Both are public duties. (See
    Stirland v. Director of Public Prosecutions
    [1944 AC 315 : (1944) 2 All ER 13 (HL)] --
    quoted with approval by Arijit Pasayat, J.
    

    in State of Punjab v. Karnail Singh [(2003)
    11 SCC 271 : 2004 SCC (Cri) 135].) The
    law does not enjoin a duty on the
    prosecution to lead evidence of such
    character which is almost impossible to be
    led or at any rate extremely difficult to be
    led. The duty on the prosecution is to lead
    such evidence which it is capable of
    leading, having regard to the facts and
    circumstances of the case. Here it is
    necessary to keep in mind Section 106 of
    the Evidence Act which says that when
    any fact is especially within the knowledge
    of any person, the burden of proving that
    fact is upon him. Illustration (b) appended
    to this section throws some light on the
    content and scope of this provision and it
    reads:

    18

    SPONSORED

    “(b) A is charged with travelling on a
    railway without ticket. The burden of
    proving that he had a ticket is on him.”

    15. Where an offence like murder is
    committed in secrecy inside a house, the
    initial burden to establish the case would
    undoubtedly be upon the prosecution, but
    the nature and amount of evidence to be
    led by it to establish the charge cannot be
    of the same degree as is required in other
    cases of circumstantial evidence. The
    burden would be of a comparatively lighter
    character. In view of Section 106 of the
    Evidence Act there will be a corresponding
    burden on the inmates of the house to give
    a cogent explanation as to how the crime
    was committed. The inmates of the house
    cannot get away by simply keeping quiet
    and offering no explanation on the
    supposed premise that the burden to
    establish its case lies entirely upon the
    prosecution and there is no duty at all on
    an accused to offer any explanation.

    xxx xxx xxx

    22. Where an accused is alleged to have
    committed the murder of his wife and the
    prosecution succeeds in leading evidence
    to show that shortly before the commission
    of crime they were seen together or the
    offence takes place in the dwelling home
    where the husband also normally resided,
    it has been consistently held that if the
    accused does not offer any explanation
    19

    how the wife received injuries or offers an
    explanation which is found to be false, it is
    a strong circumstance which indicates that
    he is responsible for commission of the
    crime. …” (Emphasis supplied)

    40. The question of burden of proof, where some
    facts are within the personal knowledge of the
    accused, was examined by this Court in the case
    of State of W.B. v. Mir Mohammad Omar and
    Others
    reported in (2000) 8 SCC 382. In this
    case, the assailants forcibly dragged the
    deceased from the house where he was taking
    shelter on account of the fear of the accused,
    and took him away at about 2:30 in the night.
    The next day in the morning, his mangled body
    was found lying in the hospital. The trial court
    convicted the accused under Section 364, read
    with Section 34 of the IPC, and sentenced them
    to ten years rigorous imprisonment. The accused
    preferred an appeal against their conviction
    before the High Court and the State also filed an
    appeal challenging the acquittal of the accused
    for the charge of murder. The accused had not
    given any explanation as to what happened to
    the deceased after he was abducted by them.
    The Sessions Judge, after referring to the law on
    circumstantial evidence, had observed that there
    was a missing link in the chain of evidence after
    the deceased was last seen together with the
    accused persons, and the discovery of the dead
    body in the hospital, and concluded that the
    prosecution had failed to establish the charge of
    murder against the accused persons beyond any
    reasonable doubt. This Court took note of the
    20

    provisions of Section 106 of the Evidence Act,
    and laid down the following principles in paras 31
    to 34 of the report:

    “31. The pristine rule that the burden of
    proof is on the prosecution to prove the
    guilt of the accused should not be taken as
    a fossilised doctrine as though it admits no
    process of intelligent reasoning. The
    doctrine of presumption is not alien to the
    above rule, nor would it impair the temper
    of the rule. On the other hand, if the
    traditional rule relating to burden of proof
    of the prosecution is allowed to be
    wrapped in pedantic coverage, the
    offenders in serious offences would be the
    major beneficiaries and the society would
    be the casualty.

    32. In this case, when the prosecution
    succeeded in establishing the afore-
    narrated circumstances, the court has to
    presume the existence of certain facts.
    Presumption is a course recognised by the
    law for the court to rely on in conditions
    such as this.

    33. Presumption of fact is an inference as
    to the existence of one fact from the
    existence of some other facts, unless the
    truth of such inference is disproved.
    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
    21

    court exercises a process of reasoning
    and reaches a logical conclusion as the
    most probable position. The above
    principle has gained legislative recognition
    in India when Section 114 is incorporated
    in the Evidence Act. It empowers the court
    to presume the existence of any fact which
    it thinks likely to have happened. In that
    process the court shall have regard to the
    common course of natural events, human
    conduct etc. in relation to the facts of the
    case.

    34. When it is proved to the satisfaction of
    the Court that Mahesh was abducted by
    the accused and they took him out of that
    area, the accused alone knew what
    happened to him until he was with them. If
    he was found murdered within a short time
    after the abduction the permitted
    reasoning process would enable the Court
    to draw the presumption that the accused
    have murdered him. Such inference can
    be disrupted if the accused would tell the
    Court what else happened to Mahesh at
    least until he was in their custody.”

    (Emphasis supplied) “.

    23. Furthermore, it is well settled that merely because a witness has

    been declared hostile, his entire testimony does not stand effaced

    from consideration. In K.P. Tamilmaran v. The State by Deputy

    Superintendent of Police, 2025 LiveLaw (SC) 493, the Supreme

    Court has reiterated this settled principle in paragraph 36, which

    reads as under:-

    22

    “36. It is though trite and much overstated but the
    maxim “falsus in uno, falsus in omnibus, is not
    applicable to our criminal justice system. It is for
    the Court to distinguish the wheat from the chaff
    while dealing with the depositions of a hostile
    witness. Courts can rely upon that part of the
    deposition of a hostile witness which is
    corroborated by other evidence on record. This
    Court in Bhajju v. State of Madhya Pradesh
    (2012) 4 SCC 327 discussed the worth of the
    evidence of a hostile witness in the following
    words:

    “36. It is settled law that the evidence of
    hostile witnesses can also be relied upon
    by the prosecution to the extent to which it
    supports the prosecution version of the
    incident. The evidence of such witnesses
    cannot be treated as washed off the
    records, it remains admissible in trial and
    there is no legal bar to base the conviction
    of the accused upon such testimony, if
    corroborated by other reliable evidence…”

    If part of the evidence of a hostile witness
    corroborates with other reliable evidence, then
    that part of the evidence is admissible. Once a
    prosecution witness has been declared hostile
    and then cross-examined by the prosecution,
    then it is for the Court to evaluate the veracity of
    the testimony. There can be several reasons for a
    witness to turn hostile and the court must also
    look into these factors while evaluating the
    evidence given by a hostile witness. It is an
    uncomfortable reality in our criminal Courts for a
    prosecution witness to turn hostile. But then the
    23

    purpose of a Trial Court is to go to the truth of the
    matter. Whatever evidence is there before the
    Court must be examined, tested, corroborated
    (whenever necessary), before a verdict can be
    finally given.”

    24. In view of the judgment of K.P. Tamilmaran (supra), when we

    examined the evidence of the witnesses, we found that, though the

    witnesses, PW-3/Santosh, PW-5/Dharamraj, PW-7/Kishan, PW-8,

    Shiv Kamar and PW-9, Rooplal, we found that on the date of

    incident, the appellants consumed liquor together and prepared a

    plan to commit the murder of the deceased, taken the iron wire, and

    has committed his murder. Presence of Dasri Bai was also found

    proved from the evidence of the aforesaid witnesses on the very next

    morning of the incident, who was crying in her house. It also comes

    that all the accused persons were residing in the same house for

    which there is no explanation from the accused persons.

    25. From the evidence, it has been proved that the appellants were there

    with the deceased on the date of incident, but in the next morning the

    dead body of the deceased was found in his house and appellants

    No. 1 and 2 have absconded and appellant No.3 was found crying in

    the house. They were having motive to commit murder of the

    deceased. All these goes to show and established that the appellants

    are guilty for the commission of the murder of the deceased. From

    the evidence of the witnesses as well as medical evidence, the

    prosecution is able to prove the guilt of the appellants that they

    committed the murder of the deceased by throttling of his neck,

    which leads to his homicidal death. Therefore, we do not find any
    24

    reason to differ with the finding recorded by the learned trial Court

    and hereby uphold the conviction and sentence awarded by the

    learned trial Court against the appellants.

    26. The appeal filed by the appellants is devoid of merits, liable to be and

    is hereby dismissed. The appellants shall undergo the entire

    sentence awarded by the learned trial Court.

    27. Registry is directed to send a copy of this judgment to the concerned

    Superintendent of Jail where the appellants are undergoing their jail

    sentence to serve the same on the appellants informing them that

    they are 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.

    28. Let a copy of this judgment and the original records be transmitted to

    the trial Court concerned forthwith for necessary information and

    compliance.

                           Sd/-                                             Sd/-
                 (Ravindra Kumar Agrawal)                             (Ramesh Sinha)
                          Judge                                         Chief Justice
    
    ved
     



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here