JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—The instant appeal is against judgment and order dated 18.5.2006 passed by the District and Sessions Judge, Jalaun at Orai convicting the appellant under Section 302 I.P.C. and sentencing him to undergo life imprisonment in Session Trial No. 134 of 2004, State v. Amresh alias Tanney. 2. The appellant is husband of the deceased Smt. Rekha Rani. The occurrence is alleged to have taken place in the intervening night of 3/4.3.2004 in the house where the appellant and deceased used to live, which is a portion of Post Office Daulatpur. The deceased was working as Branch Post Master. A written report was given at police station Kuthaund on 5.3.2004 at 6.30 a.m. by father of the deceased Arvind Kumar Bajpayee which was registered at case crime No. 12 of 2004, under Sections 302/307 I.P.C. at Police Station Kuthaund, District Jalaun, which is Ex. Ka-3. Ex. Ka-1 is an information given by Ranvir Singh PW-7 Up Mandal Nirikshak Postal Department, which is a written report on 4.3.2004 at 16.00 p.m. prior to the registration of the F.I.R. The same was entered in G.D. No. 19. 3. Inquest on the body of the deceased Smt. Rekha Rani was performed on the basis of aforesaid information and post mortem was conducted on 5.3.2004 by Dr. L.R. Pal PW-9 at 2.15 p.m. Following ante-mortem injuries were found on the body of the deceased which resulted in shock and haemorrhage and consequent death. (1) Lacerated wound 4.5 cm x 3 cm. x bone deep present on left side of forehead 3 cm. above to left eye brow. (2) Lacerated wound 3 cm. x 15 cm. present just above to left eye brow on forehead. Deep to bone. (3) Abrasion 1.5 cm. x 1 cm. on medial aspect of right elbow. 4. The allegation against the appellant as detailed in the F.I.R. by PW-1 is that his daughter was married to the appellant son of Brahm Dutt Shukla. The appellant is said to be a gambler and used to demand and extract money from his wife forcibly after beating her. PW-1 claims that he had tried to persuade his son-in-law to rectify his bad habit but to no avail. He killed the deceased by wielding blows from a wooden log (a leg of cot) and also injured his daughter Shreya alias Gudiya aged about 7 years. PW-1 claims that he had tried to persuade his son-in-law to rectify his bad habit but to no avail. He killed the deceased by wielding blows from a wooden log (a leg of cot) and also injured his daughter Shreya alias Gudiya aged about 7 years. The information about his daughter’s murder was received from one Chandra Bhushan who had got Shreya alias Gudiya admitted in the hospital. This written report is Ex. Ka-1. 5. The prosecution examined as many as 12 witnesses in support of its case; A.K. Bajpayee PW-1 first informant, Komal Singh PW-2 before whom the prosecution claims the accused appellant made an extra judicial confession about commission of the offence. He has been declared hostile. PW-3 Madhav Singh is also a witness before whom the appellant had given extra judicial confession but he has also been declared hostile. PW-4 Chandra Bhushan Shukla whom the prosecution claims as a witness of fact and that he had seen the accused going from the place of incident but he has also been declared hostile. PW-5 is Shreya Shukla aged about 7 years, daughter of the appellant and also injured. Learned Sessions Judge after making certain preliminary inquiries and queries from the child arrived at a conclusion that she is not in a position to depose. The Court observed that she is a student of class IInd and she is not even in a position to give reply to simple questions such as the mohalla in which she resides. The next witness is Sangram Singh PW-6 who supported the prosecution case in his examination-in-chief but subsequently resiled from his earlier statement in his cross-examination and admitted that his statement in examination-in-chief was on account of pressure and influence of Darogaji of police station Kathaund. He unequivocally professed that the police had extended threat, that in case he does not support the prosecution case, the police will involve him in cases of dacoity and robbery. The A.D.G.C. cross-examined him after declaring hostile. PW-7 is Ranvir Singh who had given information to the police on 4.3.2009 after receiving information from Rajendra Prasad, Postman of Post Office Daulatpur that Smt. Rekha Shukla, Branch Post Master has been done to death. He arrived there with two employees of Daulatpur Post Office. The A.D.G.C. cross-examined him after declaring hostile. PW-7 is Ranvir Singh who had given information to the police on 4.3.2009 after receiving information from Rajendra Prasad, Postman of Post Office Daulatpur that Smt. Rekha Shukla, Branch Post Master has been done to death. He arrived there with two employees of Daulatpur Post Office. Door was closed from inside, none of the family members of the deceased was present and, therefore, he gave an information at the Police Station Kathaund. The said information is numbered as Ex. Ka-2. He had also informed that an amount of Rs. 5,479/- was missing from the post office. PW-8 Head Constable Hansa Ram proved chik F.I.R. PW-9 L.R. Pal proved post mortem, PW-10 Dr. M.K. Jatariya examined injuries of Shreya, PW-11 Kamal Singh who had carried dead body of the deceased for autopsy and PW-12 R.K. Singh is the Investigating Officer. 6. The following injuries were found on the person of Shreya by PW-10. She was seen in OPD, her OPD No. is 1994 and Sl. No. 17. She was unconscious with Bruise over (L) forehead with mild nasal bleed with History of Head injury. Treatment given was Inj. IT/M and Inj. Gentamycin I/M. She was referred to Distt. Hospital Orai for further treatment at 12.05 p.m. 7. Charge was framed under Section 307 I.P.C. by the learned Trial Judge regarding injuries caused to Shreya but the appellant was given a verdict of acquittal as the prosecution failed to substantiate this charge by means of cogent and valid evidence. 8. Sri V.P. Srivastava, Senior Advocate assisted by Sri Lav Srivastava was heard on behalf of defence and Sri R.K. Singh, learned A.G.A. on behalf of the State. 9. The arguments advanced by learned counsel for the appellant are many folds. Firstly, it has been argued that F.I.R. is highly belated. It is an admitted fact that information was received by police on 4.3.2004 but the F.I.R. has only been registered on 5.3.2004 at the instance of father of the deceased. The first informant is not an eye-witness. Secondly his presence even immediately after the incident cannot be accepted since he asserts that he did not go to the hospital to see his grand-daughter who had also received injury. The first informant is not an eye-witness. Secondly his presence even immediately after the incident cannot be accepted since he asserts that he did not go to the hospital to see his grand-daughter who had also received injury. It is submitted next that all the other witnesses who had come forward to prove the factual aspects did not support the prosecution case, rather disowned their statements and were declared hostile. Besides, the admitted case of the prosecution is that door of the room from where the dead body of the deceased was recovered, was bolted from inside. The prosecution has not been able to substantiate the motive for offence as the appellant has neither been challaned in any gambling case nor any witness has corroborated the allegation that he used to extract money from his wife for gambling. On the contrary, the defence witness Kalyan Singh who is Taxi owner, has tried to prove his alibi. PW-10 Dr. M.K. Jatariya, Medical Officer, Primary Health Centre, Kuthaund has deposed that he had examined injuries of Gudiya who was unconscious. Swelling was on the left head bone and some blood was coming from her nostril. He had given Tetvac and Gentamycine injection and referred her to the District Hospital, Orai. The submission is that there is no follow up treatment. PW-1 has also said nothing about her injuries. Her injury report is Ex. Ka-12. 10. Learned A.G.A. has supported the prosecution case and judgment of conviction on the basis of examination-in-chief of PW-6 who had given out the complete details and, therefore, his evidence cannot be ignored only because at a subsequent stage i.e. almost after two months he had given a contradictory statement in the Court and took complete somersault. It is apparently for the reason that during the intervening period this witness was won over by the appellant. It is also argued that heavy burden lies on the shoulders of the appellant as he is the appellant who used to live with his wife, he is responsible for whatever happened behind the closed doors. An explanation is required from his end. In view of Section 106 of the Evidence Act, he was the only person who had the knowledge about actual facts that went on inside the room. 11. We have considered arguments of Sri V.P. Srivastava as well as learned A.G.A. and also perused the evidence. An explanation is required from his end. In view of Section 106 of the Evidence Act, he was the only person who had the knowledge about actual facts that went on inside the room. 11. We have considered arguments of Sri V.P. Srivastava as well as learned A.G.A. and also perused the evidence. We proceed to analyse the oral testimonies of the witnesses though they have been declared hostile. The prosecution itself relies specifically on the evidence of PW-6 Sangram Singh therefore, it is necessary to scrutinize his evidence. He professed in the Court at the first instance about the conversation between the appellant and PW-6. The appellant had confided in him that he has lost Rs. 10,000/- and he will try to recover it in the gambling after taking money from his wife. He has further disclosed that while he was crossing the house of the appellant on 3.3.2004 at 8.30 P.M., he heard high pitched voice of the husband and wife. He overheard Tanney demanding money from his wife for gambling. The witness neither entered the house nor told this fact to any one and went ahead to the temple. After about half an hour while returning from the temple, he heard shrieks from the house of Tanney and his wife calling for help. The witness further claims that subsequently the voices subsided, he alongwith Neeraj Shukla and Chandra Bhushan Shukla entered the house of the deceased. Tanney had held a wooden leg of the cot in his hand and he was hitting his daughter. The witnesses challenged the appellant but he was not deterred and kept on shouting that he has killed his wife and now he will kill his daughter also. The witnesses tried to catch the appellant but he fled away leaving the wooden log behind. A number of neighbours arrived at the scene of occurrence hearing the scream and shouts. Gudiya was taken to the hospital in a Marshal Jeep of one Gandhi Gupta and thereafter she was taken to the District Hospital, Orai. 12. Conviction of the appellant is on the basis of this statement of Sangram Singh recorded on 19.11.2004. He was cross-examined on 28.1.2005. The witness completely recoiled from his assertions made earlier. He denied having any relationship with the accused or his family members since last 2-3 years. He also specifically stated that he had never seen the appellant gambling. 12. Conviction of the appellant is on the basis of this statement of Sangram Singh recorded on 19.11.2004. He was cross-examined on 28.1.2005. The witness completely recoiled from his assertions made earlier. He denied having any relationship with the accused or his family members since last 2-3 years. He also specifically stated that he had never seen the appellant gambling. The conversation between Tanney and PW-6 was also disowned. His statement was on the basis of information given by one Neeraj Shukla. He has also not been able to specify the name of the temple where he was going at the time when he heard shrieks and shouts coming from the house of the appellant at the alleged time of occurrence. Besides, he has also clearly stated that his deposition in examination-in-chief is only on account of pressure of the police as he was given an ultimatum that if the witness fails to support prosecution then the police will ensure that he is implicated in some criminal case. It is, thus apparent that any conversation between the appellant and PW-6 which he admits not having first hand information but on the discloser by another witness, cannot be accepted specially on the face of eye-witnesses having been declared hostile. 13. We cannot overlook the fact that the dead body of the deceased was inside the room which was bolted from inside and the theory propounded by the prosecution that this PW-6 alongwith Neeraj Shukla and Chandra Bhushan Shukla went inside the room and saw the actual incident is difficult to accept, since the prosecution has come up with the specific assertion that it was PW-7 Ranvir who had informed the police at the first instance about the murder of the deceased and that the room was closed from inside. If at all, these witnesses had entered the house and the accused had run away after he was challenged by them, this is nobody’s case. PW-1 father-in-law of the appellant though had received information from Chandra Bhushan Shukla but he has lodged the F.I.R. only on 5.3.2004 at 6.30 a.m., is yet another circumstance which requires to undergo an acid test before we are convinced to place reliance on the testimony of PW-1. The conduct of the father-in-law of the appellant also appears to be very abnormal. The conduct of the father-in-law of the appellant also appears to be very abnormal. He has admitted that despite he was familiar with the bad habit of his son-in-law, yet he had never tried to take any step to rectify his misdeeds and when he was questioned, the only explanation is because his daughter had to live with him, he did not take the initiative to resolve the dispute by reprimanding him at any stage. He has also admitted that he had never seen his son-in-law gambling neither he has ever been challaned under the Gambling Act. He also admits that despite information given by Chandra Bhushan Shukla about grand-daughter Gudiya having been admitted in the hospital at Jhansi, he did not go to see her. He also admits that at no stage did he complain about bad habit of the appellant to his brothers and father who were well placed in society. 14. So far applicability of Section 106 of the Evidence Act, we are of the view that this does not come into play and is not applicable to the facts of the present case. The burden of proving fact especially within the knowledge of the person concerned is on him, no doubt is the cardinal rule of Section 106 of the Evidence Act but only if certain facts are established by the prosecution to be such, as no one else can possibly had any knowledge whatsoever. In the facts and circumstances to bring this case within the mischief and scope of Section 106 of the Evidence Act, it is necessary for the prosecution to allege and substantiate that at the time when the deceased died, the accused was the only person with her in the house. There was no one else and there is no eye-witness, even a remote chance of some one getting to know what transpired inside the four walls of the room where the incident took place. Admittedly, the prosecution claims that the daughter of the deceased and appellant namely Shreya was inside the house, she is an injured person alleged to have received injuries and the appellant was charged under Section 307 I.P.C. as well. Besides, there are witnesses who claim to have a first hand knowledge about the entire episode that was going on inside the house and they were able to enter the room without any outside pressure. Besides, there are witnesses who claim to have a first hand knowledge about the entire episode that was going on inside the house and they were able to enter the room without any outside pressure. No doubt, these witnesses have been declared hostile but the claim of the prosecution that they had seen the occurrence and are eye-witnesses cannot be ignored. Therefore, it is not a case which can be said to be covered within the scope of Section 106 of the Evidence Act. 15. We have also closely looked into the statement of the accused under Section 313 Cr.P.C. as well as deposition of Kalyan Singh DW-1 who has come forward to support the alibi set up by the appellant. The answer to the last question put to the accused has specifically been replied unequivocally that the appellant is a B. Com. but since he was unable to get a Government job, he used to earn money by driving taxi. His four brothers are all well placed and holds a good post in Government establishment. His brothers were not happy because the appellant’s wife was working as a Government servant. Chandra Bhushan Shukla and Neeraj Shukla witnesses had a long standing enmity with him. He has also stated that his father-in-law was given wrong information and on the date of occurrence he had gone with Kalyan Singh Yadav on a Jeep of Suresh Chandra Gupta on a pilgrimage. He received information about death of his wife in Mathura on 5.3.2004. We have noted the specific and categorical statement of the accused coupled with corroboration from DW-1, though we are not able to repose implicit faith and accept his alibi; but the fact remains that his four brothers were well placed in life, his wife was posted as a Branch Post Master and there being no evidence whatsoever that he used to gamble which the accused has also denied in his statement under Section 313 Cr.P.C., it is difficult to accept the prosecution version. The case proceeds on a specific assumption that the accused appellant was a gambler. He used to demand money from his wife to gamble and refusal to fulfill his demand, he used to misbehave with her. The father-in-law knew about this bad habit of his son-in-law but nothing was done. Grand-daughter who is said to have received injuries, was admitted by an outsider. He used to demand money from his wife to gamble and refusal to fulfill his demand, he used to misbehave with her. The father-in-law knew about this bad habit of his son-in-law but nothing was done. Grand-daughter who is said to have received injuries, was admitted by an outsider. None of the family members of the appellant or the deceased have come forward with any explanation as to what happen with the daughter, where she is residing and whether she was really injured or not. Doctor has proved her injuries but there is no medical report to substantiate that she was given treatment at the District Hospital, Orai or at Jhansi. The eye-witnesses have also not supported the prosecution case and this renders the instant appeal without an iota of evidence and it is, therefore, not possible for us to agree with the findings of the trial Court. The learned Sessions Judge has also acquitted the appellant from charge under Section 307 I.P.C. which is an act alleged by the prosecution in continuation with the murder. 16. We have already elaborated the reasons and grounds for disagreeing with the findings of the Court below as well as discussed the evidence of PW-6 who was the only witness and had tried to give some strength to the prosecution case initially but later completely disowned his evidence. Not only this, he has also given a reason for making false assertion in the Court and has stated that he was compelled and forced by the police to lend support to the prosecution. 17. In the facts and circumstances of the case, we are of the considered opinion that we cannot uphold the conclusions of the trial judge. The prosecution has miserably failed to substantiate its case by means of valid and cogent evidence. The judgment of conviction recorded by the learned Sessions Judge has no legs to stand. The judgment dated 18.5.2006 passed by the District and Sessions Judge, Jalaun at Orai in Session Trial No. 134 of 2004, State v. Amresh alias Tanney, is set at naught. The appeal is accordingly allowed. The appellant shall be set at liberty forthwith. Let a copy of this judgment alongwith lower Court record be sent to the concerned Sessions Judge for compliance. ————