JUDGMENT Kalimullah Khan, J. This Government Appeal under Section 378 Cr.P.C. has been filed by the State of U.P. against accused-respondent, Kathule, s/o Ramdin Doimar, r/o village Jigni, P.S. Majhgawan, District Hamirpur at present village Bhagwanpur, Police Station Garotha, District Jhansi, against the impugned judgment and order dated 11.01.1985, passed by the then Sessions Judge, Jhansi, in Sessions Trial No.135 of 1983, whereby he has acquitted the sole accused respondent Kathule u/s 302 IPC, who was charged for the murders of Laxman and his wife, Smt. Mula, in Case Crime No.33 of 1983, P.S. Garotha, District Jhansi. 2. State of U.P. has challenged the aforesaid impugned judgment and order dated 11.1.1985 on the ground that it is contrary to the weight of evidence on record; that learned trial court has not taken into account extra-judicial confession of the deceased which is sufficient to prove the guilt against the respondent; that the trial court has not weighed and assessed the prosecution evidence correctly; that the judgment is against the law and facts of the case. The prayer has been made to allow the appeal and to set aside the order of acquittal of the accused and convict and sentence him, according to law. 3. According to prosecution story, Laxman and Smt. Mula are the two deceased of this case. They were husband and wife interse. First informant, Kalkain, was the brother of Laxman, but he lived, separately. There was a partition wall in between the houses of Laxman and Kalkain. There were no issue from the marriagd of Laxman and Smt. Mula, but they were the owners of agricultural land, measuring 20-25 bighas. 4. Laxman and Kalkain were maternal uncle of accused respondent Kathule, who was residing with Laxman and his wife for about 10-12 years and was looking after the aforesaid land. However, Laxman was willing to give his land to Kailash, who was the son of his wife's sister which was a reason of quarrel between Kathule, Laxman and Smt. Mula for about three months. He was mounting pressure on them to transfer the aforesaid land and properties in his name. In the evening of 18.6.1983, some quarrel took place amongst them. In the night, they retired to their bed after dining. He was mounting pressure on them to transfer the aforesaid land and properties in his name. In the evening of 18.6.1983, some quarrel took place amongst them. In the night, they retired to their bed after dining. According to the first informant, Kalkain, he and his wife heard a sound of gun fire in the house of Laxman on 19.6.1983, at 3.00 a.m. Bal Kishan and Summer also heard the said gun fire. They rushed to the house of Laxman. First informant and his wife, Smt. Thaksi, were raising hue and cry. There was a lantern, lighting in the courtyard of Laxman. Even in the presence of these witnesses, several fires, as mentioned in the F.I.R. were made by Kathule on Laxman and Smt. Mula. Bal Kishan had reached there along with his licensee gun and on its strength, he succeeded to overpower Kathule with gun and cartridges belt. The aforesaid gun wielded by Kathule belonged to Laxman. The witnesses noticed that Laxman and his wife, Smt. Mula, had died at spot after sustaining gun shot injuries. Thereafter, several other persons of the village also collected there. The dead bodies were lying in the courtyard. The accused after being apprehended by Bal Kishan and Summer along with gun and cartridge belt, was brought to the house of Gram Pradhan, Chandra Bhan (P.W.6). He was confined in a room in the house of Chandra Bhan. First information report (Ex.ka-1) scribed through Vidya Prasad was lodged by Kalkain, the brother of the deceased, Laxman. Check report (Ex.ka-6) was drawn and the case was registered in the G.D. (Ex.Ka-7) on 19.6.1983, at about 6.30 a.m., u/s 302 IPC, P.S. Garautha, District Jhansi. 5. Inspector, Sewak Ram Yadav, started the investigation. He interrogated Kalkain at the police station itself and then he went to the spot, where he took Kathule in police custody from the house of the said Gram Pradhan (P.W.6). He took the gun (material Ex.4) and the bandolier (material Ex.6), which contained 07 cartridges (material Ex.7 to 13). There was an empty cartridge (material Ex.5) in the barrel of the gun. All the aforesaid case properties were sealed and recovery memo (Ex.Ka-2) was prepared. Both the dead bodies were subjected to inquest and other papers relating to it (Ex.Ka-8 to 13) were prepared. There was an empty cartridge (material Ex.5) in the barrel of the gun. All the aforesaid case properties were sealed and recovery memo (Ex.Ka-2) was prepared. Both the dead bodies were subjected to inquest and other papers relating to it (Ex.Ka-8 to 13) were prepared. Angocha (Ex.-23), baniyan (Ex.-24), underwear (Ex.-25), and kathri (Ex.-26) were recovered from the dead body of Laxman, from which, recovery memo (Ex.Ka-14) was prepared. Dhoti (material Ex.-27) and blouse (material Ex.-28) were recovered. 6. The case properties were sent to the chemical examiner, Serologist and the ballistic expert. The reports of the chemical examiner and the serologist (Exs.Ka 21 and Ka 22) were produced on the record. Kalkain had become hostile and his statement (Ex.Ka-20) as recorded by the Investigating Officer was also proved. The gun and the cartridges were examined by Sri Omprakash Mani Tripathi, Ballistic Expert. He fired the test cartridges (Exs.14 to 16) and compared the same with the cartridges cases (Exs. 1 to 3). He also prepared the negative photographs (Ex.17) and positive photographs (Exs. 18 to 22). He produced his report (Ex.ka-5), disclosing that empty cartridges E.C.-1, E.C.-2 and E.C.-4 were fired with S.B.B.L. Gun No.32 1-74 marked 1/84 but proper symptoms were lacking on E.C.-3 to tally it with the gun aforesaid. 7. The postmortem examination on the bodies of deceased Laxman and Smt. Mula was conducted by Dr. R.N. Sharma on 21.6.1983 and 22.6.1983, who also prepared the reports (Ex.Ka-3 and Ka-4). The cause of death of both the injured is shock and hemorrhage due to anti-mortem firearm injuries. 8. The prosecution examined Kalkain (P.W.1), Bal Kishan (P.W.2), Summer (P.W.4) and Chandra Bhan (P.W.6) as the witnesses of occurrence. Kalkain and Summer were, however, declared hostile by prosecution. Vidya Prasad (P.W.3) was the scribe of the written report. Dr. R.N. Sharma (P.W.5) had performed the postmortem examinations. Om Prakash Mani Tripathi (P.W.7) was the ballistic expert and Inspector Sewak Ram Yadav (P.W.8) had investigated the case. These are the prosecution evidence on the record. 9. Accused Kathule was examined u/s 313 Cr.P.C., wherein, he denied the correctness of the prosecution allegation and evidence and attributed his false implication in this case on account of enmity with Gram Pradhan, Chandra Bhan. 10. The accused admitted his relationship with the deceased persons, but denied that he looked after their cultivation. 9. Accused Kathule was examined u/s 313 Cr.P.C., wherein, he denied the correctness of the prosecution allegation and evidence and attributed his false implication in this case on account of enmity with Gram Pradhan, Chandra Bhan. 10. The accused admitted his relationship with the deceased persons, but denied that he looked after their cultivation. He denied having committed the murders and stated that he was arrested from his house by the police. He also denied that he confessed to his guilt in presence of Chandra Bhan. Regarding the various recoveries, the chemical examination and ballistic examination, he expressed his ignorance. He alleged that in the year 1982, he did not vote for Chandra Bhan in the election of Pradhan and, therefore, he was falsely implicated. He further alleged that in the year 1975, Laxman had a concubine by name Ram Murti, daughter of Bhagoley and a son named Badlu was born from her. 11. He was called upon to enter into his defence. However, he has adduced no evidence in his defence. 12. Having heard learned counsel for the parties, learned trial court acquitted accused Kathule by impugned judgment and order dated 11.1.1985 on the following grounds : - 13. First informant, Kalkain (P.W.1) and Summer (P.W.4) have turned hostile; and have not supported the prosecution case; that extra-judicial confession allegedly made by accused to Chandra Bhan (P.W.6) does not inspire confidence; that Bal Kishan (P.W.2) has supported the prosecution evidence, but there are so many latches and contradictions in his evidence, therefore, he is not a reliable witness; that although it has been established by prosecution that recovered empty cartridges from spot were fired by the gun of Laxman yet it is not established that the said gun was used by Kathule to commit the murders of Smt. Mula and Laxman; that the capture of the accused by Bal Kishan and other along with the gun of Laxman is not established by reliable evidence; and that prosecution has failed to prove its case against accused Kathule beyond all reasonable doubt. 14. We have heard learned A.G.A. and Sri S.P. Sharma, learned counsel for the accused-respondent and perused the records. 15. 14. We have heard learned A.G.A. and Sri S.P. Sharma, learned counsel for the accused-respondent and perused the records. 15. Learned A.G.A. has submitted that there were three persons including Laxman, his wife, Smt. Mula and accused respondent Kathule, living in the house of Laxman and all of these three were in the house of Laxman in the night of incident. Laxman and his wife Mula were murdered with the gun of Laxman inside the house. Kathule alone is alive. The initial burden to prove the prosecution case has been discharged by the prosecution, but the fact as to how Laxman and Smt. Mula were murdered in their house is especially in the knowledge of accused Kathule and now the burden to prove the same lies on him in accordance with the provisions contained u/s 106 of Indian Evidence Act, 1872. The said burden has not been discharged by accused Kathule, therefore, apart from the evidence adduced by prosecution, the aforesaid circumstance of not discharging the burden of proof, points towards the guilt of accused Kathule. He has not explained as to how the gun of Laxman came to the possession of assailant and as to who fired the gun. Kalkain (P.W.1) and Summer (P.W.4) have no doubt turned hostile, but their evidence, taken as a whole, proves the fact that Kathule is the murderer of Laxman and Smt. Mula. He further argued that Bal Kishan (P.W.2) has fully supported the prosecution version and likewise Chandra Bhan (P.W.6) has also supported the case of prosecution. Medical evidence fully corroborates the prosecution story and the prosecution has fully proved its case. The impugned judgment and order is perverse. Hence, it deserves to be set aside and accused Kathule is liable to be held guilty u/s 302 IPC. 16. Per contra, learned counsel for the accused respondent, has submitted that prosecution has failed to prove its case beyond all reasonable doubt. There is no clear and clinching evidence that in the night of incident, Kathule was living in the house of the deceased persons. Therefore, the burden of proof, as contained u/s 106 of the Indian Evidence Act, 1872, is not upon the accused to discharge. There is no clear and clinching evidence that in the night of incident, Kathule was living in the house of the deceased persons. Therefore, the burden of proof, as contained u/s 106 of the Indian Evidence Act, 1872, is not upon the accused to discharge. Since all the four prosecution witnesses examined on facts are wholly unreliable witnesses, therefore, the finding of the learned trial court is a possible view and that cannot be set aside by this appellate court even if it is of a different view especially for the reason that the judgment and order of acquittal is not perverse. 17. The date, time, place of incident and the homicidal death of Luxman and Smt. Mula with firearm injuries are not challenged by the accused/respondent. 18. The perusal of the record shows that the prosecution examined Kalkain (P.W.1), Bal Kishan (P.W.2) and Summer (P.W.4) as the eye witnesses of the occurrence and also examined Chandra Bhan (P.W.6) for proving the extra judicial confession of the accused. Kalkain and Summer were, however, declared hostile by the prosecution. Kalkain was the real brother of the deceased Laxman and his house was separated from the house of Laxman by a common wall. He stated that at about 3.00 a.m., he heard the report of the gun, but he was so frightened that he did not go out of the house. He further testified that sometime afterwards, he went to the house of Laxman and found him as well as Smt. Mula dead. He did not find Kathule there. He also testified that Summer and Bal Kishan came afterwards and caught Kathule at the door of Laxman and at that time, Kathule was bare-handed, which shows that Kathule was not carrying the gun of Laxman at the time when he was captured. He stated in cross examination that the intervening wall between his house and the house of Laxman was sufficiently high and he did not peep over it. He also stated that he did not see Kathule handling the gun or firing the same. Undoubtedly, true it is that accused Kathule was his sister's son, but it could also not be overlooked that on another side his real brother Laxman had been murdered. In any case, his testimony did not establish that Kathule committed the murder of Laxman or Smt. Mula. 19. Undoubtedly, true it is that accused Kathule was his sister's son, but it could also not be overlooked that on another side his real brother Laxman had been murdered. In any case, his testimony did not establish that Kathule committed the murder of Laxman or Smt. Mula. 19. Summer (P.W.4) stated that on hearing the report of the gun, he went to the house of Laxman and found Laxman as well as Smt.Mula dead, but he did not apprehend anyone there. According to him, it was Kalkain, who took Kathule to the police station. He stated that he did not see anyone committing the murder. Thus, the testimony of these two witnesses is liable to be ignored altogether. 20. Bal Kishan (P.W.2) testified that on hearing the sound of gun fire, he went to the house of Laxman, along with his own licensed gun and saw Kathule firing two gun shots on Laxman, whereupon he threatened Kathule with his own gun and caught him. His testimony was criticised on several grounds. Firstly, it was argued that his house was at a distance from the house of Laxman and he could not have reached in time to see Kathule firing two gun shots on Laxman. In this respect, Bal Kishan testified that the house of Summer intervened his house and the house of Laxman. Actually, it does not appeal to reason that on hearing the fire of the gun, he woke up and took his gun and covered the distance up to the house of Laxman but by that time the other two gun shots had not been fired by Kathule. Actually, he had testified that by the time he woke up, he heard Kalkain raising an alarm that Kathule had murdered Laxman. In his cross examination, he had to admit that he did not hear the alarm raised by Kalkain and actually when he reached the spot, he enquired from Kalkain about the matter and then Kalkain told him the aforesaid fact. As a matter of fact, Kalkain himself had not seen anything and, therefore, he could not have told him anything about the murder by Kathule. This fact is further borne out from the testimony of Bal Kishan when he stated that by the time he reached the house of Laxman, none except Summner was there. Naturally, therefore, he had no occasion to make any enquiry from Kalkain. This fact is further borne out from the testimony of Bal Kishan when he stated that by the time he reached the house of Laxman, none except Summner was there. Naturally, therefore, he had no occasion to make any enquiry from Kalkain. In these circumstances, that part of his testimony was not believable. 21. Further, he stated that he had told the investigating officer that two gun shots had been fired on Laxman in his presence. The investigating officer denied this fact and stated that Bal Kishan never told him about two gun shots. On that ground also, the testimony of Bal Kishan failed to inspire confidence. He stated that Laxman was sleeping with his head towards west and the accused fired on him, while standing towards the west of the head of Laxmabn, from a distance of 2 or 3 steps. 22. It is noteworthy that in the postmortem examination, blackening had been found in the injuries of Laxman. That could be possible only when the gun shot had been fired from a close range. The testimony of Bal Kishan did not support that fact. About the capture of the gun from the hands of Kathule also, he stated that he had threatened Kathule with his own gun, but that fact too was not stated by him before the investing officer. Lastly, he stated that after capturing Kathule, he enquired from Laxman as to what was the matter and Laxman told him that Kathule had fired upon him, because he wanted to take his land. This fact was also not conveyed by him to the investigating officer. The investing officer testified that it was possible that the witness might have told him, but he did not write it in the case diary. 23. We are absolutely unable to accept that such a material part of his statement would have been omitted by the investigating officer. It appears that the witness had actually no occasion to talk to Laxman nor had told that fact to the investigating officer. Thus, taking all these factors into consideration, the testimony of Bal Kishan does not inspire confidence. It is obvious, therefore, that the ocular evidence was unreliable and at least insufficient to establish that Kathule had committed the murders. 24. Chandra Bhan (P.W.6) was the witness of the extra judicial confession. Thus, taking all these factors into consideration, the testimony of Bal Kishan does not inspire confidence. It is obvious, therefore, that the ocular evidence was unreliable and at least insufficient to establish that Kathule had committed the murders. 24. Chandra Bhan (P.W.6) was the witness of the extra judicial confession. He stated that Bal Kishan and Summer took Kathule to his house at about 4.00 a.m. and told him that Kathule had committed the murders. He further testified that Kathule also told him that he had committed the murders, because Laxman wanted to give his land to the son of his Sarhu. In his cross examination, he stated that he had no talks with Kathule at his house, who had remained silent. The witness waivered on that part of his testimony and stated that Bal Kishan had told him this fact. He further stated that Kathule had a talk with Bal Kishan, which he overheard. Later on, he stated that Bal Kishan and Swami had a talk with Kathule. Obviously enough, this part of his testimony about confession was not trustworthy, in as much as, he had in the same breath stated that Kathule remained silent throughout at his house. Then, he stated that he told all those facts to the I.O., but the I.O. did not record that fact. Hence, the so called extra judicial confession was also not proved. 25. Bal Kishan has not claimed that he apprehended Kathule along with gun and cartridges of Laxman. Further, he has not stated that he handed over Kathule to Chandra Bhan and in the house of Chandra Bhan, Kathule was confined till the arrival of the police. I.O, Sewak Ram Yadav (P.W.8) had deposed that he took Kathule in his custody from the prosecution witness Bal Kishan. He does not say that he recovered Kathule from the house of Chandra Bhan. I.O has further stated that he has recovered the gun and cartridges of Laxman from Bal Kishan. Summer, prosecution witness, does not support the prosecution story, at all. Firstly, he denied to have seen Kathule causing firearm injury on the person of Laxman or Smt. Mula. He does not claim that he apprehended Kathule or he recovered the gun and cartridges of Laxman from Kathule. He gives a different picture of the prosecution case. Summer, prosecution witness, does not support the prosecution story, at all. Firstly, he denied to have seen Kathule causing firearm injury on the person of Laxman or Smt. Mula. He does not claim that he apprehended Kathule or he recovered the gun and cartridges of Laxman from Kathule. He gives a different picture of the prosecution case. According to him Kathule and the arms and ammunition of Laxman were taken by Kalkain in the night of incident itself to the police station. Meaning thereby, that the theory of arrest of Kathule and recovery of gun and cartridges of Laxman from him by Kalkain, Bal Kishan and Summer and also the fact that Kathule was confined in the house of Chandra Bhan belies and, therefore, the claim of I.O. (P.W.8) that he arrested Kathule from the custody of Bal Kishan and recovered the gun and cartridges in question from him is also belied. 26. Since all the witnesses, P.W.1, P.W.2, P.W.4 and P.W.6, are wholly unreliable witnesses, therefore, the claim of Kalkain alone unsupported by P.W. Summer and Bal Kishan that Kathule was living with Laxman for about 10-12 years and in the night of incident, he was there in his house cannot be believed for want of cogent, clinching and wholly reliable evidence especially when in his examination u/s 313 Cr.P.C., Kathule has stated that he was arrested by the police from his own house. I.O. (P.W.8) did not state that he arrested Kathule from the house of Laxman (deceased) or from the house of Gram Pradhan, Chandra Bhan, therefore, there is substance in the contention of learned counsel for the respondent accused that the provision contained u/s 106 of the Indian Evidence Act is not attracted in the facts and circumstances of this case. 27. In Joydeb Patra and others v. State of West Bengal 2013 Criminal Law Journal 2729, Supreme Court held that the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged that the accused could prove any fact within his special knowledge u/s 106 of the Indian Evidence Act to establish that he was not guilty. In Sucha Singh v. State of Punjab, (2001) 4 SCC 375 : ( AIR 2001 SC 1436 : 2001 AIR SCW 1292 ), Hon'ble Supreme Court held that: "We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference." 28. Similarly, in Vikramjit Singh v. State of Punjab, (2006) 12 SCC 306 : (2006 AIR SCW 6197), Hon'ble Supreme Court reiterated: "Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule, e.g. where burden of proof may be imposed upon the accused by reason of a statute." 29. As the prosecution has not been able to discharge its burden of establishing beyond reasonable doubt that Laxman and Smt. Mula were murdered by Kathule accused, the result is that the findings of acquittal recorded by the learned trial court based on the aforesaid evidence adduced on record by the prosecution cannot be said to be a perverse finding and in the facts and circumstances of the case, the view taken by the learned trial court appears to be a possible view. 30. Government appeal is dismissed and the impugned judgment and order dated 11.01.1985, is upheld.