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Chattisgarh High Court
Deenu vs State Of Chhattisgarh on 7 April, 2026
Author: Rajani Dubey
Bench: Rajani Dubey
1
2026:CGHC:15896
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24.02.2026 07.04.2026 -- 07.04.2026
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 681 of 2007
Deenu, son of Dunni Choudhary, aged about 47 years,
Caste - Chamar, resident of Sagaratola, Samata Nagar,
Gaurela, District Bilaspur (C.G.)
---- Appellant
Versus
State of Chhattisgarh Through : P.S. Gaurela, District
Bilaspur (C.G.)
---- Respondent
For Appellant : Mr. Shubham Tiwari, along with Ms.
Najmi Begam, appears on behalf of Mr.
Yogendra Chaturvedi, Advocates.
For Respondent/State : Mr. Himanshu Yadu, P.L.
Hon'ble Smt. Justice Rajani Dubey
(C A V Judgment)
1. This appeal arises out of the judgment of conviction and
order of sentence dated 31.07.2007 passed by the
Additional Sessions Judge, Pendra Road, District Bilaspur
(C.G.) in Sessions Trial No.350/2006, whereby the appellant
stands convicted and sentenced as under :-
CONVICTION SENTENCE
Under Section 304 R.I. for 10 years and to pay fine
Part-I of IPC of Rs.100/-, in default of payment
of fine amount, additional R.I. for
01 month.
2. Prosecution story, in brief, is that the accused who was
residing at Samta Nagar, Sagaratola, Gaurela, had four
sons and two daughters. The daughters were married and
living in their matrimonial homes. About eight years prior to
the incident, the marriages of his sons Rajesh and
Prathmesh were solemnized at Birsinghpur. Their wives,
namely Urmila Bai and Pratima Bai, were sisters. Pratima
Bai had left Prathmesh, after which he brought Sakun Bai as
his wife. It is further alleged that Rajesh's wife, Urmila Bai,
had committed suicide by hanging, in connection with which
Rajesh was arrested and later released from jail. Thereafter,
Rajesh developed a habit of excessive drinking and, under
the influence of alcohol, used to abuse and assault family
members, break household utensils, and burn clothes. On
one occasion, he assaulted his mother, due to which she left
for her parental home on a Sunday. On 05.06.2006, the
accused, along with his sons Prathmesh, Mukesh, Rakesh,
and Rajesh, and Prathmesh's wife Sakun Bai, were present
in the house. At about 4:45 PM, the accused sent Rakesh to
bring rice, and Rajesh sent Mukesh to bring liquor, while
Prathmesh had gone to the field. At that time, only the
accused, Rajesh, and Sakun Bai were present in the house.
It is alleged that when Sakun Bai was washing utensils and
went inside the house to keep them, Rajesh caught hold of
her hand with an evil intention and attempted to drag her
towards the bed. When she raised an alarm and tried to
escape, Rajesh, who had partially undressed himself,
attempted to pull her clothes. Upon her resistance, he
slapped her twice. The accused, Dinu (father of Rajesh),
witnessed the incident and tried to intervene and pacify
Rajesh. However, Rajesh allegedly attacked his father as
well. Thereupon, in a fit of anger, the accused assaulted
Rajesh with a wooden washing paddle (mogariya), causing
a head injury. Rajesh fell down on the spot and died.
Thereafter, the incident was reported by Prathmesh, son of
the accused, at Police Station Gaurela, on the basis of
which FIR being Crime No.113/2006 (Ex. P-1) and merg
intimation (Ex. P-2) were registered under Section 302 IPC.
During investigation, inquest proceedings (Ex. P-16) were
conducted, and the dead body was sent for post-mortem
examination to Primary Health Center, Gourela vide Ex. P-
17, where post-mortem on the body of deceased was
conducted by Dr. S.S. Painkra (PW-5) and gave his report
under Ex.P-9 opining the cause of death of deceased to be
coma with hemorrhagic shock due to severe injury and the
death was homicidal in nature.
3. During investigation, the memorandum statement (Ex.P-14)
of the accused was recorded, pursuant to which a wooden
washing bat (mogariya) and blood-stained clothes were
seized from his house vide Ex. P-13. Blood-stained and
plain soil were also seized from the spot vide Ex. P-15. The
weapon was examined by the doctor, who opined that the
injuries sustained by the deceased could be caused by the
said weapon and that death was possible by it and gave his
report vide Ex. P-10. The blood stains on the seized clothes
were also found to be of human origin, and chemical
examination was advised vide Ex. P-5. Spot map and spot
panchnama were prepared vide Ex. P-3 and P-4, &
statements of witnesses including Prathmesh, Mukesh,
Rakesh, Sakun Bai, Sushila Bai, Mohammad Shafiq, Gopal
Prasad, Revati Prasad, and Shiv Prasad were recorded.
4. After completion of usual investigation, charge-sheet was
filed before the jurisdictional Magistrate, from where the
case was committed to the Sessions Court for trial.
5. After filing of the charge sheet, the learned Trial Court
framed charges against the accused/appellant under
Section 302 of IPC, to which he abjured his guilt and
pleaded for trial.
6. So as to hold the accused/appellant guilty, the prosecution
examined as many as 11 witnesses. Statement of the
accused/appellant was also recorded under Section 313 of
Cr.P.C. in which he denied the circumstances appearing
against him in the prosecution case, pleaded innocence and
false implication. However, no defence witness was
examined in the case.
7. The trial Court after hearing counsel for the respective
parties and considering the material available on record has
convicted and sentenced the accused/appellant as
mentioned in para-1 of this judgment. Hence, this appeal.
8. Learned counsel for the appellant submits that the learned
Trial Court has committed error in law as well as in facts in
convicting and sentencing the accused/appellant for the
offence. The learned Trial Court has not taken into
consideration the fact that all the prosecution witnesses
turned hostile and have not supported the case of the
prosecution but the learned Trial Court ignoring material
aspects of the matter has convicted the accused/appellant,
which is not sustainable in the eye of law. Learned counsel
for the appellant further submits that the finding of the
learned Trial Court is based on conjecture and surmises as
there is no witness to support the prosecution case. There is
no direct evidence on record to connect the
accused/appellant with the crime in question. Learned
counsel also submits that even if the death of deceased is
presumed to be homicidal but it is apparent from the finding
recorded by the learned trial Court that the deceased, who
was under intoxicated condition, with evil intention caught
hold of hands of Sakun Bai and attempted to drag her
towards the bed, which was intervened and tried to pacify
deceased Rajesh. However, deceased Rajesh allegedly
attacked the accused as well. Thereupon, in a fit of anger,
the accused assaulted deceased Rajesh with a wooden
washing paddle (mogariya), causing a head injury and
deceased fell down on the spot and died under influence of
liquor. As such, the the appellant has right to his private
defence under Section 100 of IPC and no offence under
Section 304 IPC is made out against him. So, the impugned
judgment of conviction and order of sentence is liable to be
set aside.
9. On the other hand, learned State counsel supported the
impugned judgment of conviction and submits that the
learned trial Court has rightly appreciated oral and
documentary evidence and has rightly convicted the
appellant. So, the appeal being without any merit is liable to
be dismissed.
10. I have heard learned counsel for the parties and perused
the material available on record.
11. It is apparent from the record of the learned trial Court that
the learned trial Court framed charge under Section 302 of
the IPC against the accused/appellant and after
appreciation of oral and documentary evidence, the learned
trial Court convicted the accused/appellant under Section
304 Part I of the IPC.
12. With respect to the homicidal death of deceased, the
prosecution has examined Dr. N.S. Painkra (PW-5), who
conducted postmortem of deceased and gave his report
under Ex.P-9 and opined the cause of death of deceased to
be coma with hemorrhagic shock due to severe injury and
the death was homicidal in nature.
13. From the testimony of doctor (PW-5), it is evident that the
antemortem injuries over the body of deceased were found
which led to his death, however, it was suggested by
defence that could the deceased's death have resulted from
striking the doorframe and the doctor, in para 8 of his
evidence, admitted that if the hight of door is low and
someone runs with his head bent, the impact of the crossbar
could have caused the injuries described in postmortem
report, but it is clear from the report of doctor that he found
as many as 07 antemortem injuries on the body of
deceased, therefore, it has been found proved that the
death of deceased was homicidal in nature.
14. Prathmesh (PW-1) is the son of accused and brother of
deceased. He has stated that at the time of incident he had
gone to answer the call of nature and thereafter went to
graze the cattle & when the came to house, he saw that his
brother deceased Rajesh was lying in veranda with head
and jaw injuries and the blood was oozing from the injuries.
He has also stated that he did not asked from his wife and
his wife also did not tell him about the incident. He has also
stated that he lodged the report of incident vide Ex.P-1,
based on which merg was recorded vide Ex.P-2. Patwari
had also prepared spot map vide Ex.P-3 and spot
panchanama (Ex.P-4). This witness has admitted his
signature on 'A to A' part but has not stated against the
appellant. The prosecution declared this witness hostile then
he admitted this suggestion that his wife had told him that
deceased Rajesh had caught hold of her hands and was
dragging her but he denied this suggestion that the accused
assaulted the deceased by wooden washing paddle when
he (accused) saw the deceased holding the hand of his (this
witness) wife and dragging her. This witness has denied 'A
to A' part of his police statement (Ex.P-5) and report (Ex.P-
1) and admitted this suggestion of defence that his wife had
told him that deceased Rajesh fell face down in the
courtyard after hitting his head on the doorframe and died.
15. Mukesh (PW-2) and Rakesh (PW-3), son of accused and
brothers of deceased, have also not supported the
prosecution case. The prosecution declared them hostile
and cross-examined them but they denied all suggestions of
the prosecution and their police statement (Ex.P-6 and P-7).
16. Shakun Bai (PW-4) is the daughter-in-law (Bahu) of
accused and sister-in-law (Bhabhi) of deceased. She has
stated that on the date of incident at around 6.00 PM, when
she was sitting in the house, deceased Rajesh came
drinking alcohol then she went inside to wash utensil. At that
time, deceased Rajesh caught hold of her hands. She freed
herself and ran outside to call her father-in-law (Accused).
Thereafter, deceased Rajesh slipped and fell face down
after hitting his head on the doorframe. She called the
accsued and when he came and turned deceased Ramesh
over, they saw that he had died already. The prosecution
declared this witness hostile and cross-examined her but
she denied all suggestion of prosecution.
17. Sushila (PW-6) is the wife of accused and mother of
deceased Rajesh. She has stated that at the time of
incident, she was at her parental home. No one informed
her anything at her parental home. The prosecution
declared this witness hostile and cross-examined her but
she denied all suggestion of prosecution.
18. Safiq (PW-8) and Shiv Prasad Rohani (PW-10), the
independent witnesses, have also not supported the
prosecution case.
19. Close scrutiny of the evidence of all the prosecution
witnesses makes it clear that none of the witnesses have
supported the case of the prosecution. All material
witnesses, including Prathmesh (PW-1), Mukesh (PW-2),
Rakesh (PW-3) and sole eye-witness Shakun Bai (PW-4),
have turned hostile and not supported the prosecution case.
On the contrary, their consistent stand including the sole eye
witness (PW-4) before the learned Trial Court was that the
deceased sustained injuries after slipping and striking his
head against the doorframe. Furthermore, though a wooden
washing paddle (mogariya) has been seized from the
possession of the accused, however, the same loses its
evidentiary value in absence of any supporting forensic
evidence, as no FSL report has been brought on record by
the prosecution.
20. In this regard, the settled legal position, as laid down by the
Hon'ble Apex Court in Balwan Singh vs. State of
Chhattisgarh reported in (2019) 7 SCC 78, is that where
the FSL report is not produced by the prosecution for the
reason best know to it, the alleged seizure of incriminating
articles becomes doubtful and cannot be relied upon. In the
present case, non-production of the FSL report renders the
alleged recovery of crime i.e. wooden washing paddle
inconsequential.
21. In the present case, it is not in dispute that the incident
occurred inside the house where the accused was residing
along with several other family members. Thus, the
premises cannot be said to be in the exclusive possession
of the accused so as to attract a strict presumption under
Section 106 of the Evidence Act. Where multiple persons
have access to and are residing in the same house, the
burden cannot be shifted solely upon the accused to explain
the occurrence. In such circumstances, the prosecution is
required to first establish foundational facts pointing towards
the exclusive involvement of the accused. In absence of
such cogent evidence, no adverse inference can be drawn
against the accused merely on the basis of Section 106 of
the Evidence Act.
22. In view of the aforesaid analysis, in the present case, it is
clear that the prosecution has failed to establish the charge
against the accused beyond reasonable doubt. The
testimony of the sole eye-witness (PW-4) having been
discredited, denial of her police statement and all other
witnesses having turned hostile, coupled with absence of
reliable corroborative evidence, creates serious doubt in the
prosecution case. Consequently, the accused/appellant is
entitled to the benefit of doubt and deserves to be acquitted
of the charge.
23. Accordingly, this appeal filed by the accused appellant is
allowed and the impugned judgment of conviction and order
of sentence dated 31.07.2007 passed by the learned
Additional Sessions Judge, Pendra Road, District Bilaspur
(C.G.) are set aside and the accused appellant is acquitted
of the charge levelled against him by extending benefit of
doubt.
24. The appellant is already on bail. Keeping in view the
provisions of Section 437-A Cr.P.C. (new section 481 of the
B.N.S.S.), the appellant is directed to forthwith furnish a
personal bond in terms of Form No.45 prescribed in the
Code of Criminal Procedure of sum of Rs.25,000/- with one
surety in the like amount before the Court concerned which
shall be effective for a period of six months along with an
undertaking that in the event of filing of Special Leave
Petition against the instant judgment for grant of leave, the
aforesaid appellant on receipt of notice thereof shall appear
before the Hon'ble Supreme Court.
25. Let a copy of this judgment and the original record be
transmitted to the trial Court concerned forthwith for
necessary information and compliance.
Sd/-
(Rajani Dubey)
JUDGE
