JUDGMENT Inder Singh Uboweja, J. 1. Criminal Appeal No. 834/2004 and Acquittal Appeal No. 324/2010 filed against the common judgment dated 28.08.2004 are being disposed of by this common judgment. By filing criminal appeal No. 834/2004 the convicted appellant, Narottam Kashyap has challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 28.08.2004 passed by the Second Additional Session Judge (FTC), Mungeli, District Bilaspur in Sessions Trial No. 95/2004, whereby and whereunder after holding the appellant guilty for causing homicidal death amounting to murder of his own wife Mandakini Bai by strangulation, the Court below convicted the appellant - Narottam under Section 302 of the IPC sentenced him to life imprisonment. 2. By filing acquittal appeal, the State Government has also challenged the legality and propriety of the judgment dated 28.08.2004 by virtue of which co-accused persons namely Mongra Bai and Mehtareen Bai are acquitted of charge under Sections 302/34 of the IPC. 3. The facts, briefly stated as under:-- 4.1 Deceased Mandakini Bai was wife of the appellant. She was married to the appellant two years back from the incident. The incident occurred on 01.10.2003. She was residing in the house of the appellant. Two other accused namely Monga Bai and Mehtareen Bai, who are the close relatives of the appellant, were also residing near the house of appellant at the time of incident. 4.2 On 01.10.2003, Panchram (P.W. 7), father of the deceased Mandakini reported the incident to police, which was recorded in Rojnamcha Sanha vide Ex. P-8 in the police station, Lalpur that one Bholu has informed him that his daughter after having meals at night felt sick and slept. At morning, on crying of child she was found dead. Panchram (P.W. 7) visited appellants house and saw that his daughter had a swelling over her neck, he suspected that her death was due to throttling. He lodged merg intimation in police station, Lalpur on 01.10.2003 at about 11.30 a.m. vide Ex. P-8. A copy of merg intimation was sent to the Executive Magistrate and the police officers rushed the village. They found that the dead body of the deceased - Mandakini was laying on floor outside of the appellants, house. 4.3 Notice (Ex. P-1) was given to the Panchas and inquest (Ex. P-2) was prepared. The dead body was sent for post-mortem. A copy of merg intimation was sent to the Executive Magistrate and the police officers rushed the village. They found that the dead body of the deceased - Mandakini was laying on floor outside of the appellants, house. 4.3 Notice (Ex. P-1) was given to the Panchas and inquest (Ex. P-2) was prepared. The dead body was sent for post-mortem. The post-mortem examination was conducted by a team of two doctors consisting of Dr. Chaw Singh (P.W. 9) and Dr. P.S. Dan vide Ex. P-9. They found that deceased face Was cynosed, eyes closed, reddish oozing from nostrils, head slight turn left side, mouth slight open, tongue in between teeth. Network of veins over chest right side front & right arm visualized. Lower part of abdomen distended. Nail bluish (cynosed), fingers & hand flexion. Rigor mortis present in upper & lower limbs. Rigor mortis passed in neck. Postmortem sterning over face back, thorax. Faecalith presen. They opined that the cause of death was asphyxia as a result of strangulation and it was homicidal in nature. The postmortem report is Ex. P-9. 4. During the course of investigation, spot maps were prepared vide Ex. P-3 and Ex. P-13. Statements of witnesses were recorded under Section 161 of the Cr.P.C. Visra and other organs were seized and sent to FSL vide Ex. P-15, FSL report was received vide Ex. P-14. 5. During investigation, it revealed that deceased was harassed for dowry and she was subjected to cruelty and her death was caused by strangulation. So death was "dowry death". Appellant and his two closed relative were deemed to have caused her death. After concluding the investigation, challan under Sections 498A, 304(B) and 302 of the IPC were filed against the appellant and co-accused Mongara Bai and Mehtareen Bai. 6. Case of the prosecution was based on the circumstantial evidence. Prosecution has examined as many as 14 witnesses. The accused were examined Under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them and pleaded innocence and false implication. The appellant has examined one defence witness Ramesh as DW-1. 7. After affording opportunity of hearing to the parties, learned Additional Session Judge has acquitted accused Monga Bai and Mehtareen Bai from all charges and convicted & sentenced the appellant as aforementioned. Hence these appeals. 8. The appellant has examined one defence witness Ramesh as DW-1. 7. After affording opportunity of hearing to the parties, learned Additional Session Judge has acquitted accused Monga Bai and Mehtareen Bai from all charges and convicted & sentenced the appellant as aforementioned. Hence these appeals. 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial court. 9. Learned Counsel for the appellant vehemently argued that conviction of the appellant is based on circumstantial evidence, there is no eye witness in the incident. Learned Sessions Judge mainly relied on the circumstances that the deceased had died homicidal death inside the house of the deceased and the appellant, only two persons were residing in the bedroom of the deceased, where the deceased died homicidal death. 10. The conviction of the appellant-Narottam is impugned on the ground that without there being any iota of evidence, the court below convicted and sentenced the appellant as aforementioned and thereby committed illegality while acquittal of the co-accused persons, namely Mongra Bai and Mehtareen Bai court below has erred to hold that death of Mandakini was homicidal and by strangulation. 11. Counsel for the appellant has also submitted that death of the deceased was natural. He relied on a decision of Suresh Kumar & other Vs. State of Chhattisgarh 2010 (1) CGLJ 115 (DB), in which Coordinate Bench of this Court has held that "opinion of the doctor is not supported by Modi's Medical Jurisprudence" so including other reasons Court held that appellants are entitled for benefit of doubt. 12. On the other hand, learned Panel Lawyer for the State/respondent opposed the appeal and argued that evidence adduced on behalf of the prosecution is sufficient to prove the fact that the appellant has caused homicidal death amounting to murder of the deceased and trial Court has erred to acquil Mongra Bai and Mehtareen Bai as there was sufficient evidence against them. Learned Counsel further argued that after appreciating the evidence available on record the trial court has rightly convicted and sentenced the appellant as aforementioned. 13. In order to appreciate the arguments advanced on behalf of the parties we have to examine the evidence on behalf of the prosecution. 14. Learned Counsel further argued that after appreciating the evidence available on record the trial court has rightly convicted and sentenced the appellant as aforementioned. 13. In order to appreciate the arguments advanced on behalf of the parties we have to examine the evidence on behalf of the prosecution. 14. In the present case, admittedly the deceased was residing with the appellant in his house and they used to sleep in an independent house which has been shown in the maps Ex. P-3 and Ex. P-13 which were prepared by Patwari and Police Officer. Prosecution witness Panchram (P.W. 7), father of deceased, has stated that brother of the appellant namely Bholu informed him that his daughter Mandakani has died last night at about 9-10 p.m. He went to the spot and saw that the dead body of his daughter was laying inside the house and also saw swelling over her neck. He suspected the death of the deceased as murder and reported the same in Police Station Lalpur. 15. Bhagwat Prasad Kashyap (P.W. 10) is cousin of deceased. He also stated that he was accompanied with his uncle Panchram (P.W. 7), he saw the dead body of deceased was laying inside the house. Dead body was laying on floor of the house, he saw that deceased neck was in swelling condition, thereafter, his uncle lodged report in Police Station. 16. Prosecution witness Itwari (P.W. 12) has also supported the version of Panchram (P.W. 7) and Bhagwat Prasad Kashyap (P.W. 10) that the deceased neck was looking swell and he also suspected of being murdered. 17. Autopsy surgeons have clearly opined, looking to the symptoms of the deceased body, her death was asphyxia due to pressure effect on neck and chest region and it was homicidal in nature. They proved their postmortem report (Ex. P-9). 18. Defence witness Ramesh (DW-1) has stated that he did not know how deceased has died. He also stated that he had not heard any dispute between the deceased and the appellant. His evidence does not help the appellant for his defence. 19. Prosecution witnesses Panchram (P.W. 7), Bhagwat Prasad Kashyap (P.W. 10) and Itwari (P.W. 12) have proved that they have seen the deceased in abnormal condition and then suspecting that her death was not normal and she was murdered inside of the house. Autopsy surgeon Dr. His evidence does not help the appellant for his defence. 19. Prosecution witnesses Panchram (P.W. 7), Bhagwat Prasad Kashyap (P.W. 10) and Itwari (P.W. 12) have proved that they have seen the deceased in abnormal condition and then suspecting that her death was not normal and she was murdered inside of the house. Autopsy surgeon Dr. Chaw Singh (P.W. 9) has proved by his evidence that death of deceased was homicidal in nature. It is clear by the evidence that dead body of deceased was recovered from inside the house of the appellant and her death was not a natural death, Doctors conducting autopsy on the body of Mandakini clearly opined that death was due to strangulation and death was homicidal in nature. 20. In the instant case, deceased dead body was found inside the house of the appellant, her death was unnatural, abnormal and homicidal. Deceased was lastly alive throughout in the house in the night in company of her husband. It was exclusively within the special knowledge of appellant that how and when the deceased has died and the appellant was having special knowledge about death of his wife and these circumstances proved against the appellant. 21. Present case is based on circumstantial evidence and offence happened in inside the house of the accused. Prosecution case is not based on eye witness. So such type of case, in which, offence committed inside the house of the accused, it is the duty of accused to offer true explanation before the Court. In this case, no explanation was offered by the accused in his statement under Section 313 Cr.P.C. 22. In Trimukh Maruti Kirkan Vs. State of Maharashtra 2006 AIR SCW 5300, it was held that: "...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 Court. 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. 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. 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 S. 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. In case of no explanation or false explanation it would become an additional link in chain of circumstances." 23. Further in State of Rajasthan Vs. Kashi Ram 2006 AIR SCW 5768, it was held that: "Whether an inference ought to be drawn under Section 106 is a question which must be determined by reference to facts proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts. The respondent, accused having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by S. 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt." The Court further held that: "...The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd's case reported in AIR 1960 Madras 218." 24. Therefore, the facts relating to homicidal death of his wife must have been in his knowledge. Thus, under Section 106 of the evidence Act, the burden was upon the appellant to explain as to how his wife died homicidal death in the night in his house where only two persons were residing in a house. The appellant did not discharge the burden cast upon him under Section 106 of the evidence Act, therefore it was an incriminating circumstance against him. Looking to the evidence on record, we find that acquittal of the accused Mongra Bai and Mehtareen Bai was based on cogent, reliable and clinching evidence and there was no illegality or infirmity in the judgment of acquittal by the learned Session court. 25. For the foregoing reasons, we find no infirmity in the judgment and finding recorded by the Additional Sessions Court in so far as the appellant-Narottam Kashyap is concerned. We are of the view that the learned Additional Sessions Judge was fully justified in resting the conviction of the appellant on the above set of evidence and the same deserves to be upheld. We are of the view that the learned Additional Sessions Judge was fully justified in resting the conviction of the appellant on the above set of evidence and the same deserves to be upheld. Accordingly the both appeals are liable to be dismissed and are hereby dismissed.