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
“(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
21court 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
