JUDGMENT INDER SINGH UBOWEJA, J. 1. This appeal is directed against the judgment dated 7th December, 2010 passed in Sessions Trial No. 33 of 2009 by the First Additional Sessions Judge, Raipur. By the impugned judgment, the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- in default of payment of fine to further undergo S.I. for 02 months. 2. As per the case of prosecution, appellant and her son Azhar (deceased) were living-together in their own residence at Kashiram Nagar, Raipur at the time of incident. Her husband, Mohammad Umar (complainant) was residing with his parents at Subhash Nagar, Raipur as relations between them were strained. On 11.10.2008, brother-in-law of Mohammad Umar (PW-2) had informed him that his, son Azhar has died, so he went to Kashirarn Nagar and saw that his son Azhar was lying on a bed and also saw the injury on stomach. He was suspecting that his son was murdered, therefore, he lodged Dehati Nalishi vide Ex. P-2 and Merg Intimation vide Ex. P-3. 3. The Investigation Officer reached to the place of occurrence, gave notice (Ex. P-23) to the Panchas and prepared inquest (Ex. P-24) on the dead body of the deceased. The dead body was sent for postmortem. The postmortem examination was conducted by Dr. Shivnarayan Manjhi (PW-8). Upon examination, he found following injuries on the body of the deceased:-- "(i) Contusion over middle portion of upper lip of 1 x 0.5 cm. (ii) Contusion over left side of upper lip of 0.5 cm diameter. (iii) Contusion over left side of lower lip of 1.5 x 0.5 cm. (iv) Contusion over right side of lower lip of 1 x 0.5 cm. (v) 03 contusions over upper lip of 0.5 cm diameter in front of upper teeth. (vi) Impact abrasion over right hand behind elbow joint of 1 cm diameter. (vii) Contusion over upper portion of right shoulder of 1.5 cm diameter. (viii) Red colour ecchymosis present on occipital region of 4 cm diameter. (ix) Postmortem incised wound present on abdomen 3 cm above from umbilicus extends in mid-plane of left side 7x2 cm. (x) Postmortem incised wound present on just above umbilicus 12 x 2 cm transversely 2 cm deep muscle exposed. (viii) Red colour ecchymosis present on occipital region of 4 cm diameter. (ix) Postmortem incised wound present on abdomen 3 cm above from umbilicus extends in mid-plane of left side 7x2 cm. (x) Postmortem incised wound present on just above umbilicus 12 x 2 cm transversely 2 cm deep muscle exposed. (xi) Stab wound was present on 4 cm above from umbilicus into mid plane transversely 1.5 cm x 0.5 cm x 2 cm deep. (xii) Postmortem incised wound present just above injury No. (x) of 12 cm x 0.5 cm x 0.5 cm deep, muscles exposed." The Autopsy Surgeon opined that out of the above, some injuries (Injuries No. 1 to 8) were ante mortem and some injuries (Injuries No. 9 to 12) were postmortem in nature. Injuries were caused by hard and sharp object and the cause of death was due to Asphyxia as a result of smoothening and it was homicidal in nature. The postmortem report is Ex. P-11. 4. Deceased clothes were seized vide Ex. P-10. Spot map was prepared vide Ex. P-25. Eight pieces of glass including one piece of bloodstained glass and bloodstained clothes were seized from the spot vide Ex. P-22. Finger prints of the appellant were taken for sending to finger print expert vide Ex. P-14 and received the finger print report vide Ex. P-15. First Information Report was lodged on the basis of merg intimation vide Ex. P-21. Seized pieces of glass and clothes were sent to FSL for chemical examination. 5. Statements of the witnesses were recorded under Section 161 of Cr. P.C. During the course of investigation, it revealed that deceased had died on account of smothering and the appellant had committed murder of her son, therefore, police arrested her. After completion of investigation, charge sheet was filed before the Chief Judicial Magistrate, Raipur, who in turn committed the to the Court of Sessions, Raipur, from where the case was transferred for trial to the First Additional Sessions Judge, Raipur. 6. The case of the prosecution was based on circumstantial evidence. In order to prove the guilt of the appellant, the prosecution has examined as many as 11 witnesses. The accused was examined under Section 313 of Cr. 6. The case of the prosecution was based on circumstantial evidence. In order to prove the guilt of the appellant, the prosecution has examined as many as 11 witnesses. The accused was examined under Section 313 of Cr. P.C. in which she denied the circumstances appearing against her and pleaded that three persons in which two man and one woman came to their house and they pressed her neck then she became unconscious and when she regained consciousness she saw that her son was found dead. She pleaded her innocence and false implication. The appellant/accused has not examined any witness in defence supporting her case. 7. After affording opportunity of hearing to the parties, learned First Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 8. We have heard learned counsel for both the parties and perused the judgment impugned and record of trial Court. 9. Mrs. Indira Tripathi, learned Counsel appearing on behalf of the appellant, has argued that the conviction is solely based on finger print expert report. According to him, finger print of the appellant on the piece of glass is not acceptable because that was taken by police after the incident occurred. There is no eyewitness of the incident and after the incident, appellant informed her relative that some persons came to her house and killed her son. There is no evidence that she has killed her son, but, she has explained the circumstances. Therefore, conviction under Section 302 IPC cannot be sustained and the appellant deserves acquittal. She relied on a decision of Sukhram vs. State of Madhya Pradesh, 1989 Supp (1) SCC 214, in which the Apex Court has held that "In view of inconsistencies in testimony of witness as also between such testimony and statements made under Section 161 (3) of Cr. P.C. accused/appellant is entitled to benefit of doubt." 10. On the other hand, learned counsel for the State has opposed these arguments and supported the judgment passed by the Additional Sessions Court. 11. Admittedly, the case is based on circumstantial evidence. Now, we shall examine the evidence on the basis of which the appellant has been convicted. 12. In the instant case, the incident took place in the intervening night of 10th & 11th October, 2008. Rubina Parween (PW-1) is the niece of the appellant. 11. Admittedly, the case is based on circumstantial evidence. Now, we shall examine the evidence on the basis of which the appellant has been convicted. 12. In the instant case, the incident took place in the intervening night of 10th & 11th October, 2008. Rubina Parween (PW-1) is the niece of the appellant. She stated that in midnight of 10th & 11th October, 2008 at about 3.30 to 4.00 a.m., appellant called in her husband's mobile that three persons came her home and they killed Azhar. This witness has been declared hostile by the prosecution and did not support the prosecution story. 13. Mohammad Umar (PW-2) is the husband of the appellant. He stated that he was living with his parents at Subhash Nagar, Raipur. His brother-in-law, Ayyad came there and informed that Azhar has died then he went to the place of incident and saw that Azhar was laying on bed. He enquired about the death of Azhar then appellant stated that three persons came in night and they shut her mouth then she became unconscious and when she regained consciousness, she saw that her son was laying. He stated that he reported Dehati Nalishi (Ex. P-2), Dehati Merg Intimation (Ex. P-3). This witness was also declared hostile by the prosecution and with the permission of the Court he was cross-examined, but did not support the prosecution story. 14. Suresh Babu Katiyar (PW-3) is a police constable at police station, Telibandha and incident place falls in that area. He stated that one Rajesh Wadhwani came to police station and informed that son of the appellant has died and he along with Rajesh went to house of the appellant. Door of her house was closed, he knocked, thereafter, appellant opened the door and informed that nothing has happened, then he came back and informed Rajesh that if any thing happened, he confirm it. After sometime, Rajesh came and informed him firmly that son of the appellant has died. He stated that he and other police officers went to the place of incident and made search the house of the appellant. They saw that dead body of Azhar was laying on bed, his abdominal portion was cut and pieces of glass were present. He was cross-examined and his evidence was intact about conduct of the appellant. 15. Yasmin Khan (PW-6) was the neighbour of the appellant at the time of incident. They saw that dead body of Azhar was laying on bed, his abdominal portion was cut and pieces of glass were present. He was cross-examined and his evidence was intact about conduct of the appellant. 15. Yasmin Khan (PW-6) was the neighbour of the appellant at the time of incident. She supported by her evidence that at the time of incident police constable Katiyar has come to the appellant's house and appellant has opened the door of her house and said that nothing has happened. 16. Mirza Ayaz (PW-5) is brother of the appellant. He stated that on 11.10.2008 at about 7-8 a.m., he was informed by mobile phone that Azhar has died. He rushed the house of appellant at about 8.15 am. He saw that door of the house was closed, window was also closed, then he opened the stopper of window and entered into the house. He saw that dead body of Azhar was laying on bed; then he informed to relative and went to the house of Mohammad Umar (PW-2) and informed him about the incident. 17. Shaukat Ali (PW-11) is the Investigating Officer. He stated that he has written Dehati Nalishi on zero (Ex. P-2). Dehati Merg Intimation (Ex. P-3), FIR (Ex. P-20) and numbered Dehati Merg (Ex. P-21). He also stated that during the investigation, he seized broken glass pieces and clothes vide seizure memo Ex. P-22. He also took finger prints of the appellant and sent to the Director of Finger Print Bureau and seized articles were sent to FSL. 18. Finger Print Expert, S.K. Jain has been examined as PW-10. He stated that he had examined eight glass pieces which were sent to him. In one piece of glass he found finger print, he compared it with sending sample finger print of the appellant and he found that both the finger prints were one and the same. He proved his report (Ex. P-19), which shows that appellant has used those pieces of glass during the incident because those were broken that unfortunate night. It is no doubt, glass piece is, by nature a hard and sharp object, and by use of glass piece, injury may be caused by cut size and deep. 19. He proved his report (Ex. P-19), which shows that appellant has used those pieces of glass during the incident because those were broken that unfortunate night. It is no doubt, glass piece is, by nature a hard and sharp object, and by use of glass piece, injury may be caused by cut size and deep. 19. Prosecution witness, Suresh Babu Katiyar (PW3), Rubina Parveen (PW-1), Mohammad Umar (PW-2), Ayyaz Ahmed (PW-5) have clearly stated that they have seen the appellant in the place of incident after the incident, which clearly shows that during the incident appellant was present in the room in which deceased was died. From medical report, it is clear that death of Azhar was homicidal in nature and he was brutally assaulted. Finger Print Expert has clearly proved that in one seized piece of glass, finger print of the appellant was present and that glass was seized from near the dead body and according to Doctor Shiv Narayan Manjhi (PW-8) injury to deceased was caused by hard and sharp object. It is clear that piece of glass was used for assaulting Azhar. He also stated that death was due to Asphyxia as a result of smothering. Conduct of the appellant was very suspicious, because she has not clarified that how three persons came to her home and when those persons closed the doors in night. She has also not clarified that what type (figure, feature, colour, height, built and physical structure) of persons came to her home. She did not try to save her son during the incident and after the incident when she regained conscious, she has not tried to come out from the house for seeking help. According to examination of the appellant vide Ex. P-4, there is no sign over her mouth that was pressed by anybody. 20. Above prosecution evidence clearly shows that deceased and appellant were present together in a room at the time of incident. It is also clear that incident took place in a room where the appellant and her son were present, there is neither any single injury over the body of the appellant nor there is any injury or sign over the mouth of the appellant. Her defence that some three persons came and done the incident, clearly shows that it is totally false and fabricated story. She has given false explanation before the Court. Her defence that some three persons came and done the incident, clearly shows that it is totally false and fabricated story. She has given false explanation before the Court. Appellant was the only person who knew the fact that how and when Azhar sustained injuries over the body and who has pressed his body resulting into death of Azhar. It is clearly proved that incident was within the special knowledge of the appellant, it was the duty of the appellant to offer true explanation before the Court. In this case, no true explanation was offered by the accused in her statement under Section 313 of Cr. P.C. 21. In Trimukh Maroti 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. 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." 22. In case of no explanation or false explanation it would become an additional link in chain of circumstances." 22. 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. 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. 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." 23. In the present case, dead body of the deceased was found in appellant's room and he was found dead by injuries and strangulation. According to the injuries and strangulation, death was homicidal in nature and the burden was upon the appellant to prove her innocence. The appellant/accused has not given any explanation that how the deceased has died inside the house by injuries and smothering and death was homicidal in nature. Therefore, the circumstance was an incriminating circumstance proved against the appellant. 24. In view of the above evidence available on record, we find that conviction of the appellant is based upon cogent, reliable and clinching circumstantial evidence and there is no illegality or infirmity in the impugned judgment of conviction and order of sentence passed by the learned First Additional Session Judge. 25. Consequently, we do not find any merit in the appeal and same is liable to be dismissed and is accordingly dismissed being devoid of merit. Appeal Dismissed.