Chattisgarh High Court
Girvar Prasad Sharma And Ors vs The State Of Chhattisgarh on 14 May, 2026
1
Digitally
2026:CGHC:22909
VISHAKHA signed by
BEOHAR VISHAKHA
BEOHAR
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 436 of 2015
Judgment Reserved on 01.04.2026
Judgment Delivered on 14.05.2026
1 - Girvar Prasad Sharma, S/o Fakirchand Sharma, aged about 57
Years,
2 - Shrin Sharma, D/o Girvar Prasad Sharma, aged about 31
Years,
3 - Kunti Devi Sharma, W/o Girvar Prasad Sharma, aged about 46
Years,
All are R/o Sector-4, Street W.M.R. Qrt. No. 02/B, Bhilai, Police
Station - Bhilai Bhatti, District - Durg Chhattisgarh.
--- Appellants
versus
1 - The State Of Chhattisgarh Through Station House Office,
Police Station - Bhilai Bhatti, District - Durg Chhattisgarh.
--- Respondent/State
For Appellants : Mr. Shreyansh Pathak, Advocate
For Respondent/State : Mr. Kanwaljit Singh Saini, Dy. G.A.
ACQA No. 42 of 2015
2
1 - Phoolchand Sharma, S/o Late Shri Khoob Chand Sharma,
aged about 60 Years, R/o Vasundhara Nagar, In Front of Central
School, Damoh, Distt. Damoh M.P..
---Appellant/Complainant
Versus
1 - State of Chhattisgarh, Through The Station House Officer,
Police Station Bhilai Bhatti, Distt. Durg Chhattisgarh.
2 - Girwar Prasad Sharma, S/o Shri Fakeerchand Sharma, aged
about 57 Years,
3 - Shireen Sharma, S/o Shri Girwar Prasad Sharma, aged about
31 Years,
4 - Sachin Sharma, S/o Shri Girwar Prasad, aged about 24 Years,
5 - Vipin Sharma, S/o Shri Girwar Prasad Sharma, aged about 26
Years,
6 - Kunti Devi Sharma, W/o Shri Girwar Prasad Sharma, aged
about 46 Years,
Respondent Nos. 2 to 6 are R/o Sector 4, Road WMR, Quarter No.
2/B, Bhilai, Ps Bhilai Bhatti, District Durg, Chhattisgarh.
--- Respondent(s)
For Appellant/Complainant : Mr. Avinash K. Mishra, Advocate
For State/Respondent No.1 : Mr. Kanwaljit Singh Saini, Dy. G.A.
For Respondents No. 2 to 6 : Mr. Shreyansh Pathak, Advocate
ACQA No. 209 of 2015
1 - State Of Chhattisgarh Station House Officer, Police Station
Bhilai Bhatti, District Durg Chhattisgarh. , Chhattisgarh
---Appellant/State
Versus
3
1 - Girwar Prasad Sharma, S/o Fakirchand Sharma, aged about
57 Years,
2 - Shirin Sharma, S/o Girwar Prasad Sharma, aged about 31
Years,
3 - Sachin Sharma, S/o Girwar Prasad Sharma, aged about 24
Years,
4 - Vipin Sharma, S/o Girwar Prasad Sharma, aged about 26
Years,
5 - Kunti Devi Sharma, W/o Girwar Prasad Sharma, aged about 46
Years,
All are R/o Sector 4 Street WMR, Quarter No. 2/B, Bhilai, Police
Station Bhilai Bhatti, District- Durg, Chhattisgarh.
--- Respondents
(Cause-title Taken From Caste Information System)
For Appellant/State : Mr. Kanwaljit Singh Saini, Dy. G.A.
For Respondents : Mr. Shreyansh Pathak, Advocate
Division Bench : Hon'ble Shri Justice Sanjay S. Agrawal and
Hon'ble Shri Amitendra Kishore Prasad, JJ.
CAV Judgment Per Amitendra Kishore Prasad, J.
1. Since all the aforesaid appeals arise out of the common judgment dated 27.03.2015 passed by the learned Additional Sessions Judge, Durg, District Durg, C.G. in Sessions Trial No.189/2013, they are being heard analogously and are disposed of by this common judgment.
2. Criminal Appeal No.436 of 2015 has been preferred by 4 appellants--Girvar Prasad Sharma, Shirin Sharma and Kunti Devi Sharma under Section 374(2) of the Code of Criminal Procedure, calling in question the legality and correctness of the judgment whereby they have been convicted and sentenced as under:
Conviction Sentence Under Section 498-A read Rigorous Imprisonment for with Section 34 of Indian 3 years with fine of Penal Code (in short, 'IPC') Rs.1,000/-, in default of payment of fine amount to undergo additional rigorous imprisonment for one month to each appellant Under Section 306 read with Rigorous Imprisonment for Section 34 of IPC 7 years with fine of Rs.1,000/-, in default of payment of fine amount to undergo additional rigorous imprisonment for one month to each appellant (Both sentences were directed to run concurrently)
3. Acquittal Appeal No. 42 of 2015 has been preferred by the complainant- Phoolchand Sharma, father of the deceased- Pragnya Sharma, challenging the judgment of acquittal passed by the learned trial Court insofar as it relates to acquittal of the accused persons from the charges under Sections 302 and 304-B read with Section 149 of IPC and seeking their conviction for the said offences. 5
4. Acquittal Appeal No. 209 of 2015 has been preferred by the State challenging the same judgment of acquittal insofar as it relates to acquittal of the accused persons from the offences punishable under Sections 302 and 304-B read with Section 149 of IPC and seeking their conviction for the said offences.
5. Prosecution case, in brief, is that deceased- Pragnya Sharma was married with accused- Shirin Sharma on 15.02.2012 and after marriage, she started residing in her matrimonial home at Bhilai along with husband and family members. According to prosecution, after marriage, she was subjected to cruelty and harassment on account of demand of money and domestic pressure. On 03.04.2013, information was received by parental family that her condition had become serious. She was taken to hospital where she was declared dead. Merg intimation (Ex.P-33) was recorded and thereafter investigation was undertaken. During investigation, spot map was prepared vide Ex.P-27, articles were seized vide Exs.P-13, P-14, P-24, P-25 & P-29, inquest proceedings were conducted vide Ex.P-2 and postmortem examination over the dead body of deceased was conducted vide Ex.P-22 and statements of witnesses were recorded. On the basis of written complaint (Ex.P-3) lodged by PW-1 Phoolchand Sharma, father of the deceased, FIR (Ex.P-28) was 6 registered against the accused persons. On completion of investigation, charge-sheet was filed against accused persons for offences under Sections 302 & 304-B read with Section 149 IPC.
6. The learned trial Court framed charges accordingly. The accused persons denied their guilt and pleaded false implication. In order to prove its case, the prosecution examined 22 witnesses and exhibited 33 documents. The accused persons, in their defence, examined two witnesses, namely DW-1 and DW-2.
7. Upon appreciation of evidence on record, the learned trial Court acquitted all the accused persons of the charges under Sections 302 and 304-B read with Section 149 of IPC, however, convicted and sentenced the present appellants under Sections 498-A and 306 read with Section 34 of IPC. Hence, separate appeals have been preferred by the appellants, the complainant, and the State respectively.
8. Criminal Appeal No.436 of 2015:- Learned counsel for the appellants submits that the impugned judgment of conviction and order of sentence is contrary to law and facts of the case. It is contended that the learned trial Court has failed to properly appreciate the evidence on record, which suffers from material contradictions, omissions and improvements. It 7 is further submitted that the prosecution case rests mainly on interested witnesses, being close relatives of the deceased, and no independent witness has supported the allegation of cruelty or harassment. It is also contended that there is no material evidence to establish instigation, abetment or intentional aiding on the part of the appellants so as to attract the offence under Section 306/34 IPC. Accordingly, it is prayed that the impugned judgment of conviction and order of sentence be set aside and the appellants be acquitted of the charges leveled against them.
6. Learned State counsel, while supporting the impugned judgment of conviction under Sections 498-A/34 & 306/34 IPC, submits that the prosecution has successfully established that the deceased was subjected to cruelty and harassment in her matrimonial home soon before her death. It is further submitted that the medical evidence clearly indicates that the death was homicidal in nature and the appellants, being inmates of the house, have failed to explain the circumstances in which the deceased sustained fatal injuries. It is thus prayed that the appeal preferred by the appellants deserves dismissal.
9. Acquittal Appeal No.42 of 2015:- Learned counsel for the complainant submits that the learned trial Court has committed 8 grave illegality in acquitting the accused persons from the charges under Sections 302 and 304-B read with Section 149 IPC. It is submitted that the deceased died within a short span of marriage in unnatural circumstances inside her matrimonial home, thereby attracting statutory presumption under Section 113-B of the Evidence Act. It is further submitted that consistent evidence of parents and relatives clearly establishes persistent cruelty and demand of money, which has not been properly appreciated by the learned trial Court. Hence, interference is prayed for.
10. Acquittal Appeal No.209 of 2015:- Learned State counsel supports the submissions made on behalf of the complainant and submits that the prosecution has been able to establish that the deceased was subjected to cruelty soon before her death in connection with unlawful demand. It is further contended that the death occurred in unnatural circumstances within the matrimonial home, and the accused persons having failed to explain the cause of death, adverse inference is liable to be drawn.
11. Per contra, learned counsel appearing for the accused persons supports the acquittal recorded by the learned trial Court under Sections 302 and 304-B read with Section 149 IPC and submits that the prosecution has failed to establish 9 homicidal death and dowry demand beyond reasonable doubt. It is contended that the allegations are vague, omnibus and unsupported by any independent evidence, and the view taken by the learned trial Court being a plausible view does not warrant interference.
12. We have heard learned counsel for the parties and perused the material available on record.
13. From a careful perusal of the record as well as the exhibited documents, it appears that the marriage of the deceased was solemnized on 15.02.2012 with accused- Shirin Sharma. After marriage, she started residing in her matrimonial home along with the accused persons. The written complaint (Ex.P/3) were lodged by PW-1 Foolchand Sharma, father of the deceased, on 04.04.2013, i.e., immediately after the incident, though formal FIR (P-28) came to be registered on 09.04.2013. Prior thereto, merg intimation (Ex.P-33) was recorded and inquest proceedings (Ex.P-2) were conducted.
14. The inquest report (Ex.P-2) reveals that the deceased had sustained multiple injuries over her body, which were ante- mortem in nature. The postmortem report (Ex.P/22) indicates that the cause of death of deceased was asphyxia due to airway obstruction caused by ante-mortem injuries inflicted by hard and blunt object. The doctor (PW-13 Dr. B.N. Dewangan) 10 who conducted the postmortem examination has opined that the nature of death of deceased was "most probably homicidal."
15. PW-13 Dr. B.N. Dewangan, though used the expression "most probably homicidal," has clearly found multiple ante- mortem injuries and opined that death was due to asphyxia caused by such injuries. The presence of multiple injuries on vital parts of the body, coupled with absence of any clear indication of suicidal mechanism, strengthens the prosecution case. Though the expression used by the doctor reflects some degree of caution, but the medical findings themselves unmistakably point towards homicidal violence.
16. The inquest report (Ex.P-2) and the medical evidence, when read conjointly, establish that the injuries were not superficial or accidental in nature, but were sufficient to cause death. There is no material on record suggesting any plausible theory of suicide or accidental death. In fact, as rightly observed, there is not even a whisper in the entire evidence indicating suicidal death.
17. Thus, cumulative assessment of the medical evidence, postmortem report (Ex.P-22) and inquest proceedings (Ex.P-2) leads to an irresistible conclusion that the death of the deceased was homicidal in nature.
11
18. In order to convict an accused for an offence under Section 304-B of IPC, the following essentials must be satisfied:-
"304-B Dowry Death.-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her dath she was subjected to cruelty or ha4rassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death.
Explanation.- For the purpose of this sub-section, 'dowry' shall have the same meaning as in section 2 of the Dory Prohibition Act, 1961 (28 of 1961).
(2) whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
19. To attract the provisions of Section 498-A of IPC against the accused, the following ingredients, as contained therein, are required to be examined, which read as under:-
"498-A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to 12 cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.--For the purposes of this section, "cruelty means"--
(a) anywilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
20. In the light of the above enunciation of law, the facts of the present case are required to be examined minutely.
21. Now adverting to the oral evidence, PW-1 Phoolchand Sharma, father of the deceased, has deposed that the deceased had informed him through mobile phone on the date of incident that she was being assaulted by her husband and mother-in-law. His testimony further reveals that he immediately contacted accused No.1, who assured him that he would take corrective steps. He has also stated that earlier also the deceased had complained about harassment and ill- 13 treatment made by the accused persons.
22. PW-2 Smt. Usha Sharma, mother of the deceased, PW-5 Pramod Sharma, maternal uncle of deceased and PW-6 Sourabh Sharma, brother of the deceased, have also supported the prosecution case regarding cruelty and harassment meted out to the deceased in her matrimonial home by accused persons. Their testimonies, though related, remain consistent on material aspects relating to physical and mental cruelty.
23. However, upon close scrutiny, it appears that allegations regarding demand of dowry are not specific and suffer from inconsistencies. The essential ingredient of demand of dowry soon before death is conspicuously absent. The evidence does not establish any proximate and live link between alleged harassment and demand of dowry.
24. In the matter of Kans Raj v. State of Punjab reported in (2000) 5 SCC 207 and Satbir Singh v. State of Haryana reported in (2021) 6 SCC 1, the Hon'ble Supreme Court has categorically held that for attracting Section 304-B IPC, the prosecution must establish a proximate and live link between cruelty based on dowry demand and the death of the deceased, and such cruelty must be "soon before death". The said principle has been reiterated in Rajinder Singh vs. State 14 of Punjab reported in (2015) 6 SCC 477, wherein it has been held that mere evidence of cruelty is not sufficient unless it has nexus with dowry demand soon before death.
25. In the present case, in the absence of cogent and reliable evidence establishing demand of dowry, the offence under Section 304-B read with Section 149 of IPC is not made out against the accused persons. The learned trial Court has rightly acquitted the accused persons of the said charge, and no interference is called for on that count.
26. At the same time, the consistent and reliable part of the prosecution evidence clearly establishes that the deceased was subjected to cruelty and harassment in her matrimonial home. The conduct attributed to the accused persons squarely falls within the ambit of Section 498-A of IPC. Therefore, the conviction under Section 498-A read with Section 34 IPC deserves to be affirmed.
27. The crucial question that now arises is with regard to the nature of the offence resulting in the death of the deceased. The learned trial Court has convicted the appellants under Section 306 read with Section 34 IPC treating the case as one of suicide. However, in light of the medical evidence and the surrounding circumstances brought on record, such finding does not appear to be sustainable. When the medical 15 evidence clearly indicates a homicidal death caused by ante- mortem injuries and there is no material suggesting suicide, even the demant of dowry was also not found to be proved accordingly conviction under Section 306 read with Section 34 IPC cannot be sustained, as the essential ingredients of abetment to suicide are completely absent. There is neither any evidence of instigation, intentional aiding, nor any active conduct on the part of the appellants which could have driven the deceased to commit suicide. Instead, the evidence on record points towards commission of a culpable act resulting in death.
28. In this regard, the Hon'ble Supreme Court in Virendra Pal @ Vipin vs. State of Haryana 2025 INSC 710 has reiterated that where the evidence on record clearly rules out suicide and indicates homicidal death, conviction under Section 306 IPC would be legally unsustainable and the Court is duty-bound to examine whether the offence would fall within the ambit of Section 302 IPC.
29. The deceased was admittedly residing in her matrimonial home and the incident occurred within the four walls of the house. The evidence further establishes that she was subjected to assault immediately prior to her death. The accused persons, being inmates of the house and persons in close proximity to the deceased at the relevant time, have failed to offer any plausible explanation as to the 16 circumstances in which the deceased sustained multiple fatal injuries. Such unexplained circumstances assume significant evidentiary value in the facts of the present case.
30. Section 106 of the Indian Evidence Act, 1872 reads as under:
"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
31. 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.
32. In the matter of Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404, their Lordships of the Supreme Court have held that the general rule that in a criminal case 17 the burden of proof is on the prosecution and Section 106 of the Evidence Act is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution, to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The Supreme Court while considering the word "especially" employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J., observed as under: -
"11. ... The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B)."18
13......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.
33. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar, (2021) 10 SCC 725, in which it has been held by their Lordships of the Supreme Court as under:-
"22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.
23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to 19 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."
34. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab, AIR 1956 SC 460, while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him.
35. The principle of law laid down by their Lordships of the 20 Supreme Court in Gurcharan Singh (supra) has been followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar, AIR 1974 SC 778, 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.
36. The Supreme Court in the matter of P.N. Krishna Lal and Others v. Government of Kerala and Others, 1995 Supp (2) SCC 187 that when the prosecution establishes the ingredients of the offence charged, the burden shifts on the accused to prove certain facts within his knowledge or exceptions to which he is entitled to and held in para 46 as under:-
"46. It is thus settled law even under general criminal jurisprudence that Sections 105 and 106 of the Evidence Act place a part of the burden of proof on the accused to prove facts which are within his knowledge. When the prosecution establishes the ingredients of the offence charged, the burden shifts on to the accused to prove certain facts within his knowledge or exceptions to which he is entitled to. Based upon the language in the statute the burden of proof varies. However, the test of proof of preponderance of probabilities is the extended criminal jurisprudence and the burden of proof is not 21 as heavy as on the prosecution. Once the accused succeeds in showing, by preponderance of probabilities that there is reasonable doubt in his favour, the burden shifts again on to the prosecution to prove the case against the accused beyond reasonable doubt, if the accused has to be convicted. From this conceptual criminal jurisprudence, question emerges whether sub-section (5) placing the burden on the accused of the facts stated therein would offend Articles 20(3), 21 and 14 of the Constitution."
37. In the matter of Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 their Lordships of the Supreme Court have held in paragraphs 14, 15 & 22 as under:-
"14. If an offence takes place inside the privacy of a house and in such 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 22 Stirland v. Director of Public Prosecution, 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh, (2003) 11 SCC 271. 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:
(b) A is charged with traveling 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 the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent 23 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 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 placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation 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. In Nika Ram v. State of Himachal Pradesh, AIR 1972 SC 2077, it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106, the appellant was prosecuted for the murder of his wife which 24 took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045, the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill- treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu v.
Rajendran, (1999) 8 SCC 679, the wife was found dead in a hut which had caught fire. The 25 evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.
38. The Hon'ble Supreme Court in the matter of Gargi vs. State of Haryana (2019) 9 SCC 738 has held as under:-
"23. As noticed, the first question that concerns us in this matter is as to whether death of Tirloki Nath was suicidal or it had been a matter of homicide. The trial court as also the High Court have returned concurrent findings that it had been a matter of homicidal death. Both the courts came to this conclusion essentially with reference to the medical opinion that the cause of death was asphyxia due to strangulation; and also with reference to some of the surrounding factors that the feet of the hanging dead body were touching the floor; the knees were bent; the slippers were not removed; and the room in question was wide open. Assailing 26 such findings, it is contended on behalf of the appellant that as per medical jurisprudence, scratches, abrasions, bruises, etc. are usually present and hyoid bone would be usually found broken in case of strangulation but, in the present case, there were no such marks nor hyoid bone was broken."
23.1. We have closely examined the testimony of PW 1 Dr Usha Bansal, who was one of the members of the board that had conducted post- mortem. We have also taken into account the features noticeable from the site plan, the inquest report and the photographs placed on record. Having examined the relevant material, we find nothing of infirmity in the findings of the trial court and the High Court that it had been a case of strangulation, as could be seen from the post-mortem report that the dead body carried "well-defined depressed ligature mark measuring 3 cm wide seen encircling the neck around thyroid cartilage with a knot present on left side of neck and this ligature mark was ante-mortem in nature". The other ligature mark was on the left side of the neck measuring 1.5 cm wide and that was post-mortem in nature. The board had undoubtedly been of the opinion that the cause of death was "asphyxia due to strangulation". With such categorical medical opinion coupled with all the relevant features surrounding the suspended dead body in the room in question, it is difficult to say that it had 27 been a case of suicide merely because hyoid bone was not broken or because the marks of resistance like abrasions/scratches were not reported. The presence of marks of resistance would depend on a variety of factors, including the method and manner of execution of the act of strangulation by the culprits; and mere want of such marks cannot be decisive of the matter. Equally, it is not laid down as an absolute rule in medical jurisprudence that in all cases of strangulation, hyoid bone would invariably be fractured. On the contrary, medical jurisprudence suggests that only in a fraction of such cases, a fracture of hyoid bone is found. [Modi: A Textbook of Medical Jurisprudence and Toxicology, 26th Edn. p. 529 where it is also noted:"In Journal of Forensic Sciences, Vol. 41 under the Title -- Fracture of the Hyoid Bone in Strangulation: Comparison of Fractured and Unfractured Hyoids from Victims of Strangulation, it is stated:The hyoid is the u- shaped bone of the neck that is fractured in one-third of all homicides by strangulation. On this basis, post-mortem detection of hyoid facture is relevant to the diagnosis of strangulation. However, since many cases lack a hyoid fracture, the absence of this finding does not exclude strangulation as a cause of death. The reasons why some hyoids fracture and others do not may relate to the nature and magnitude of force applied to the neck, age of 28 the victim, nature of the instrument (ligature or hands) used to strangle, and intrinsic anatomic features of the hyoid bone...."] In other words, absence of fracture of hyoid bone would not lead to the conclusion that the deceased did not die of strangulation."
39. Further, the High Court of Delhi in the matter of Pawan Singh vs. State & Ors. 2015 SCC OnLine Del 7021 has held as under:-
"9. Subsequently, ASI Rakesh Tyagi (PW10) made an application dated 6th February, 2010 (Ex.PW-10/D) to the Department of Forensic Medicines and Toxicology Dilshad Garden, Delhi for obtaining final opinion regarding the cause of death of Dimple, and Dr. Meghali (PW6) vide her opinion dated 10th February, 2010 (Ex.PW-6/B), recorded that the cause of death in the present case was compression of neck by a hard and blunt force object. After about 15 days, ASI Rakesh Tyagi (PW10) made another application (Ex.PW-10/E) seeking clarification from PW6 whether the death was homicidal, suicidal or accidental and whether the injuries were ante-mortem or post-
mortem. To us, it is obvious from the opinion (Ex.PW6/B) that the death by compression of neck by hard or blunt object could be homicidal and not suicidal or accidental. The external injuries noticed on the body as mentioned in 29 the post mortem report (Ex.PW-6/A) have been referred to and quoted above. PW6 in her report dated 25th February, 2010 (Ex.PW-6/C), recorded that this was a case of asphyxia as a result of ante-mortem compression of the neck by a hard and blunt force object. Thus, it was unlikely that the death was suicidal or accidental. Reference was made to the injuries present on the body. It was further recorded that the said injuries were ante-mortem in nature.
22. There is no evidence or material whatsoever to suggest that deceased Dimple was taken to the Nursing Home at 9-10 PM on 17th/18th September, 2009. This fact is not stated by the appellant in his statement under Section 313, Cr.P.C. There is time gap between 11-12 PM and 2.10 AM, when allegedly on the advise of Doctors of the nursing home, Dimple was taken to GTB Hospital. In fact, as per the MLC (Ex.PW-11/A), Dimple was brought to GTB Hospital at 2.10 AM. Further, PW5's testimony that Raj Pal, uncle of Dimple was called immediately after 8-9 PM is incorrect and contrary to the depositions by Dharampal (PW2) and Vikram (PW1). The appellant Pawan in his statement under Section 313 Cr.P.C has stated that Rajpal came to GTB hospital at 3 AM. The medical reports (Ex.PW-11/A, B and C) and the testimony of Dr. 30 Satish Chandra (PW11) are to the contrary, as medical reports opine that the cause of death was asphyxia due to strangulation by a hard and blunt object. It is not possible to accept that the children could have pulled mangalsutra or black thread resulting in Dimple's death.
Testimony of Vikram Singh (PW1) and
Dharampal Singh (PW2) are lucid and
unequivocal on their attempts to speak to Dimple at night on 17th September, 2009, but without success. It is unbelievable and unacceptable that PW2 would have spoken to Sanjay Tyagi (PW5) instead of a direct call at the residence and to the appellant to speak to Dimple. Desire and attempt of Dharam Pal (PW2), the father, to speak to Dimple is accepted by Sanjay Tyagi (PW5). Moreover, Sanjay Tyagi (PW5) in his statement accepted his cordial relations with the appellant Pawan and that he was still residing as a tenant in the house of Chaman Lal with whom he used to meet."
40. Similarly, The High Court of Judicature at Patna in the matter of Suman Devi vs. The State of Bihar CRA (DB) No. 532 of 2023 has held as under:-
"11.The learned Trial Court, after examining all the evidences available on the record, found that the allegation as alleged by the prosecution is beyond all reasonable doubts.31
Before the death of the deceased, only the accused/appellant (Suman Devi) was present in the house and on the body of the deceased (Sohit Kumar), four nail bites were found in front of neck with bruises and abrasions. The cause of death was "asphyxia due to strangulation". The accused/appellant has failed to prove that the deceased died naturally."
41. Furthermore, the Hon'ble Division Bench of this Court in the matter of Abhay Sahu vs. State of Chhattisgarh, CRA No. 757 of 2015, has held that where the death occurs within the confines of the matrimonial home and the accused fails to offer a plausible explanation regarding the circumstances leading to such death, the burden under Section 106 of the Indian Evidence Act shifts upon the accused, and a false explanation furnished by him becomes an additional incriminating circumstance pointing towards his guilt.
42. Reverting to the facts of the present case, it is evident that the death of deceased occurred inside the matrimonial home where the accused persons were admittedly residing along with the deceased. The medical evidence clearly establishes that the death of deceased was homicidal in nature caused by ante-mortem injuries resulting in asphyxia due to airway obstruction. The circumstances clearly indicate that the 32 deceased was last seen in the company of the accused persons and the injuries were inflicted within the privacy of the house. Despite such incriminating circumstances, the accused persons have failed to furnish any plausible explanation regarding the cause of death of deceased.
43. In such circumstances, the principle under Section 106 of the Evidence Act assumes significance. Once the prosecution establishes foundational facts indicating homicidal death within the matrimonial home, the burden shifts upon the inmates to explain the circumstances within their special knowledge. Their failure to do so provides an additional link in the chain of circumstances pointing towards their involvement.
44. Considering the totality of the evidence, namely the medical evidence indicating homicidal death of deceased, the consistent testimony regarding assault soon before death, the presence of the accused persons in the house at the relevant time, and their complete failure to explain the circumstances of death, this Court is of the considered view that the prosecution has successfully established beyond reasonable doubt that the death of the deceased was homicidal and was caused in furtherance of the common intention of the accused persons.
45. Consequently, the finding recorded by the learned trial Court convicting the appellants under Section 306 read with Section 33 34 IPC is unsustainable in law and on facts. The conviction under Section 306 IPC is accordingly set aside and is substituted with conviction under Section 302 read with Section 34 of IPC and accordingly the accused appellant Girvar Prasad Sharma, Shrin Sharma and Kunti Devi Sharma are sentenced to life imprisonment.
46. Consequently, Criminal Appeal No. 436 of 2015 filed by the accused persons/appellants is dismissed while converting conviction and sentence of appellants Girvar Prasad Sharma, Shirin Sharma and Kunti Devi Sharma under Section 302/34. The conviction of the appellants under Section 306 read with Section 34 of the IPC is set aside, and they are instead convicted under Section 302 read with Section 34 of the IPC. The conviction and sentence of the appellants under Section 498-A read with Section 34 of the IPC are affirmed.
47. Accordingly, the acquittal appeals filed by the complainant as well as the State are allowed in part. The co-accused persons, namely Sachin Verma and Vipin Verma, who were acquitted by the learned trial Court of the offence under Section 302 read with Section 149 of the IPC are acquitted as there is no evidence against them.
48. Accordingly, the appellants accused namely Girvar Prasad 34 Sharma, Shirin Sharma and Kunti Devi Sharma are sentenced to undergo imprisonment for life for the offence under Section 302 read with Section 34 of IPC. The sentence imposed under Section 498-A read with Section 34 of IPC in respect of the accused persons, namely Girvar Prasad Sharma, Shirin Sharma and Kunti Devi Sharma, shall remain intact. Both the sentences shall run concurrently.
49. The accused persons are reported to be on bail. Their bail bonds stand cancelled. They are directed to surrender before the concerned trial Court forthwith for serving out the remaining part of the sentence. In case the accused persons fail to surrender within a period of one month from the date of pronouncement of this order, the learned trial Court shall take necessary steps for securing their presence and commit them to custody in accordance with law.
50. The Registry is directed to forthwith transmit a copy of this judgment along with the records to the concerned trial Court for compliance.
Sd/- Sd/-
(Sanjay S. Agrawal) (Amitendra Kishore Prasad)
Judge Judge
Vishakha
35
HEAD-NOTE
Once homicidal death inside the matrimonial home and presence of the accused are established, the burden under Section 106 of the Evidence Act shifts upon the accused to explain the circumstances within their special knowledge. Failure to offer any explanation, coupled with medical and ocular evidence, completes the chain of circumstances proving guilt beyond reasonable doubt.