NAVANITI PRASAD SINGH, J.:–The present appeal has been filed by the sole appellant against the conviction and sentence passed against him by the learned Sessions Judge, Nawadah being dated 6th March, 1991, in Sessions Trial No. 422 of 1989 arising out of Kawakole P.S.Case No.30 of 1989. 2. The appellant has been found guilty for the offence punishable under Sections 302 and 201 of the Indian Penal Code, for which he has been convicted and sentenced to life imprisonment and imprisonment for three years respectively which are to run concurrently. 3. It may be noted that the appellant and three others were originally charged and tried for the offences punishable under Sections 302/34 of the Indian Penal Code and 201/34 of the Indian Penal Code but the others have been acquitted by the trial court. 4. The appellant has been charged with murdering his wife Sudamiya Devi and then disposing of her dead body after tying her with millstone (JATTA) and throwing her in a well thereby committing the offences punishable under Sections 302 and 201 of the Indian Penal Code respectively. 5. In order to establish the prosecution case, the prosecution has examined twelve (12) witnesses but the material witnesses are P.W.1 (Kalawati Devi), the sister of the deceased (Sudamiya Devi), P.W.3 ( Moti Choudhary), the informant and the husband of P.W.1, P.W.8 (Bhaso Devi), the mother of the deceased and P.W.9 (Shankar Choudhary), 10 years old boy being the son of the deceased from her earlier marriage and P.W.4(Kamta Pd.Sah),who is the Investigating Officer. 6. At this stage we would like to notice that several of the prosecution witnesses have apparently tried to change their evidence but we may comment upon the manner in which the trial court checked the same by putting pertinent questions to the witnesses, where the witnesses tried to revert to their statements made in examination-in-chief, thus, correcting the deviation. That, in our view, is the purpose and the jurisdiction of the trial court and it was rightly so exercised. The trial Court has a duty to solicit the truth from the evidence and it has right to question any witness or the accused at any time for the said purpose. 7. The prosecution case is based upon the fardbeyan of P.W.3.,Moti Choudhary, which is Ext.3. Moti Choudhary is the husband of one Kalawati Devi (P.W.1), who is the younger sister of the deceased. 7. The prosecution case is based upon the fardbeyan of P.W.3.,Moti Choudhary, which is Ext.3. Moti Choudhary is the husband of one Kalawati Devi (P.W.1), who is the younger sister of the deceased. In the fardbeyan he states that at his toddy shop he had heard some people talking about a lady who had been murdered. He heard that the appellant had beaten his wife (deceased) and the deceased was missing. As the deceased happened to be his wife’s elder sister, he informed this to his mother-in-law(P.W.8). The three of them i.e. Moti Choudhary, Kalawati Devi and Bhaso Devi then went searching the deceased. Having not found the deceased (Sudamiya Devi) at any relations places, they went to the appellant and asked the appellant about her where about. The appellant stated that she had run away, she might have been killed and if she had been killed how he could produce her. They became suspicious. They started enquiring and looking into nearby well which is situated about 300 to 400 yards from the house of the appellant. They found something body like floating in the well. They gave information to the Thana, which was nearby. The Officer In-charge came. They tried to take it out on the same evening but were unable to do it. Later in the morning the dead body was fished out. It was found that it was the dead body of the deceased (Sudamiya Devi). She had been tied with a millstone on her back with chain and had been drowned in the well. The dead body was highly decomposed. 8. Upon this fardbeyan inquest was prepared and P.W.5 (Shambhu Singh) and P.W.6 (Bhola Pd. Yadav) are the witnesses to the inquest. The dead body was sent for post mortem. The post mortem was conducted by Dr.Anil Kumar (P.W.2) and the Post Mortem report is Ext.1. In the opinion of the doctor, the lady was killed by throttling and by asphyxia. The time of death was 5-7 days from recovery. Indeed he deposed that he could not find any mark of external injury because of the dead body being highly decomposed and skin pilled of. 9. Upon investigation police submitted charge sheet against the appellant as also the three others, who were found with the appellant when the informant had gone to make enquiry. Indeed he deposed that he could not find any mark of external injury because of the dead body being highly decomposed and skin pilled of. 9. Upon investigation police submitted charge sheet against the appellant as also the three others, who were found with the appellant when the informant had gone to make enquiry. Upon charge sheet being filed and pursuant to cognizance having been taken, the case was committed to the Court of Session where charges were framed, trial was conducted and the sole appellant was found guilty whereas three others were acquitted. 10. From the aforesaid, in nut-shell, the prosecution case is that the appellant was married to the deceased. It was the appellant’s second marriage and it was the third marriage of the deceased. The appellant had four children from his first wife and his first wife had died. So far as the deceased is concerned her first husband had died and the second husband was living and she had a son of about ten years old from this marriage, who has been examined as P.W.9 (Shankar Choudhary).The marriage of Sudamiya Devi with the appellant was her third marriage. She was then found murdered. It cannot be urged that it was a case of fatal accident or suicidal death. It was clearly homicidal. 11. Learned counsel for the appellant submits that first the prosecution has to establish that the appellant was married to the deceased because the appellant in his examination under Section 313 Cr.P.C. has clearly said that Sudamiya Devi was not his wife. He further submits that the prosecution having failed to establish this, then the whole prosecution case falls as a pack of card. It is not for the defence to explain as to who killed Sudamiya Devi and how. 12. We have considered the submissions and found it misconceived. The appellant was all along living with the deceased in the house before murdering his wife. Not even to a single witness, the defence ever made a suggestion that Sudamiya Devi was not the wife of the appellant or the appellant was never married to Sudamiya Devi. This fact was never challenged. The only consistent suggestion given by the defence is that she was in habit of running away from matrimonial house. This also pre-supposes that they were indeed living together. This fact was never challenged. The only consistent suggestion given by the defence is that she was in habit of running away from matrimonial house. This also pre-supposes that they were indeed living together. Even if we accept this, this does not explain how she ends her life in a well situated 300 to 400 yards from her matrimonial house and chained to millstone . In our view it is one of those cases where Section 106 of the Evidence Act could be invoked. 13. Where the prosecution evidence was consistent that the deceased was married to the appellant and the appellant was staying with the deceased till she was found dead in a homicidal manner within the vicinity of matrimonial house, it is the responsibility of the accused to explain how she died. It is within the special knowledge and therefore the onus would lie on him. In our view he has failed to discharge this onus. 14. We may now examine the witnesses. 15. P.W.1 is the younger sister of the deceased. She clearly states that the appellant was married to the deceased about a year back .She had heard in her toddy shop about disappearance of the deceased. They had then looked for her at places of other relations and ultimately they came to her matrimonial house where the appellant is said to have disclosed that she had run away. Thereafter the body of her sister was recovered from a nearby well tied with millstone by chain which she identified. In her cross examination she admits that this was the third marriage of Sudamiya Devi. She admits that her second husband is still alive. She admits that the appellant was also married to some one else and his first wife had died and he had children from the first marriage. Upto this stage the evidence and the cross examination both are consistent with the prosecution case. Her further examination was then postponed. After two months when she was cross examined for concluding her cross examination she makes ‘U’ turn even going to the extent that she was not examined by the police. She was not present when the dead body was fished out of the well. She did not know how her sister was killed and she admits that her sister used to run away from her matrimonial house. 16. She was not present when the dead body was fished out of the well. She did not know how her sister was killed and she admits that her sister used to run away from her matrimonial house. 16. We would like to take note of this ‘U’ turn in later half of her cross examination. She stands by her deposition as narrated in chief in the first part of her cross examination. This later part of cross examination in her deposition is clearly an abrasion, may be because of many reasons in the time in between break in cross examination. Therefore, this part of cross examination is not a truthful exposition of facts and events. It deliberates false statement and does not help the defence in any manner. 17. The next witness is P.W.3, Moti Chouhdary, who is the husband of P.W.1 (Kalawati Devi) and is the informant. He is as such brother-in-law of the appellant. Here again this witness, P.W.3, clearly states that the appellant was married to the deceased. He has clearly deposed that she used to live with the appellant. He states that he had heard some people talking in his toddy shop about the appellant beating his wife. Accordingly they had gone making enquiry and ultimately reached the appellant, who gave evasive answer but then the dead body of the deceased was recovered from a well which he had recognized. She was chained by millstone to facilitate drowning in the water. The well was near the house of the appellant. 18. We would come to cross examination again. This witness has deliberately tried to damage the case of the prosecution which was based on his own fardbeyan. The statement in cross examination suggests that he made a statement to the Police Inspector which was recorded as fardbeyan. He did not know its contents and was forced to sign it. He then goes to the extent of saying that the dead body had not been fished out in his presence. He admits that the deceased used to run away from her matrimonial house. The Court rightly intervened and questioned the witness. In response to Court’s questioning, he admits that he had seen the dead body fished out of the well. The body was tied. Thus, once again he supports the prosecution case. 19. He admits that the deceased used to run away from her matrimonial house. The Court rightly intervened and questioned the witness. In response to Court’s questioning, he admits that he had seen the dead body fished out of the well. The body was tied. Thus, once again he supports the prosecution case. 19. The next witness we would take up is P.W.8, Bhaso Devi, the mother of the deceased. She has clearly stated that it is her daughter, Kalawati Devi (P.W.1), who informed her that the deceased had either run away from her house or had been killed. She along with her daughter then went searching and came to the house of the appellant. The appellant said that his wife had gone to Jamui. When he was informed that she was not in Jamui then he said that she might have gone to her Mousi (Auntry). He was then informed that she was not even there. Then he said that she might have gone to Dhanbad or Jharia. They requested him, the appellant, to search his daughter to which he replied that if some one killed her how he could search her. It is thereafter in course of search that they came to the well. She narrates how the dead body was fished out which was identified as the deceased. She admits that the deceased had a son, namely, Shankar who used to stay with Sudamiya Devi and when the marriage was solemnized with the appellant he used to stay with this witness. In the cross examination she admits that Sudamiya had a son Shankar with the first husband. She further admits that the appellant had four children from the first marriage. She further deposes that at the time of marriage of the appellant and Sudamiya Devi, his first wife was not alive. She admits that the villagers had not participated in this marriage. She denied a vague suggestion that Sudamiya Devi was not married with the appellant. She admits that Sudamiya had been married with the appellant. She denied the suggestion that Sudamiya was married again with some one else, which was protested by the appellant who had sought Panchayati. This line of suggestion only affirms the fact that Sudamiya, in fact, was married to the appellant. 20. She admits that Sudamiya had been married with the appellant. She denied the suggestion that Sudamiya was married again with some one else, which was protested by the appellant who had sought Panchayati. This line of suggestion only affirms the fact that Sudamiya, in fact, was married to the appellant. 20. We may also notice here that the parties to the case are Pasi by caste, which is a Scheduled Caste and they are extremely backward. Pre dominatedly they collected toddy. They are extremely poor. We have to see the conduct of the parties accordingly. 21. In our view the basic testimony of this witness regarding marriage of the deceased with the appellant, discovery of body and the manner in which it was sought to be concealed remained unrebutted or unshaken. 22. The next witness is Shankar Choudhary (P.W.9), who is aged about 10 years old and son of the deceased from the earlier marriage. He was first tested in the Court with regard to his understanding. He has clearly stated that Sudamiya Devi had been killed by the appellant who is the step father. He stayed with his mother and the appellant for 5 to 6 months. Thereafter the appellant was not ready to keep him. He was sent to maternal grand mother (Nani) (P.W.8). He admits that his natural father is alive. After marriage of appellant with his mother he remained with his natural father for about 1 or 2 months but his step mother there used to provide stale food. 23. From the evidence of this witness it is clear that he along with his mother (deceased) had stayed with the appellant. He knew the appellant as his step father. Thus the marriage of the appellant to the deceased stands further established. Once the marriage between the appellant and the deceased stands established the testimony of another witnesses is clear and suggestive that the deceased was staying with the appellant till she was found killed in gruesome manner. In this connection we may also refer to the evidence of P.W.11 and P.W.12 being Kuldeep Paswan and Chamo Paswan respectively, who are formal witnesses. They have stated that the appellant and the deceased were married. 24. Next we may now examine the deposition of the Investigating Officer i.e. Kamta Prasad Sah. In this connection we may also refer to the evidence of P.W.11 and P.W.12 being Kuldeep Paswan and Chamo Paswan respectively, who are formal witnesses. They have stated that the appellant and the deceased were married. 24. Next we may now examine the deposition of the Investigating Officer i.e. Kamta Prasad Sah. He states that upon getting the news (rumour) about a body floating in the well he reached the place in the evening where he found that Moti Choudhary (P.W.3) was present there. He recorded the fardbeyan of Moti Choudhary and started investigation after seeing the body. He sent the fardbeyan for registering the First Information Report. In the evening he could not fish out the dead body from the well but he stationed police personnel there to camp and in the morning they fished out. The dead body which was identified by P.W.3, the informant and P.W.1, his wife as well as P.W.8, mother of the deceased. Inquest report was then prepared, which was signed by P.W.5 and P.W.6.. He then described the manner in which the dead body was recovered. Both hand and leg were tied and the dead body was chained with millstone in back. They were also seized and the seizure list was produced in the Court and marked as exhibit. Chain and millstone were also produced and marked as material exhibits. He clearly states that the well is about 400 yards from the house of the appellant. The body was then sent for post mortem. Then the accused persons were arrested. He had remained unshaken in cross examination on the aspect of recovery of the dead body and its identification. We may mention that after his evidence was closed he was recalled and a suggestion was given to him he arrested Manik Pasi of Pali village in place of Manik Pasi of village Badraji which obviously he denied. 25. So far as other witnesses are concerned we may note that three of the witnesses i.e. Shambhu Singh, Bhola Pd. Yadav and Kashi Paswan being P.W.5, P.W.6 and P.W.7 are the formal witnesses. The first two are witness to inquest and the later is village Chowkidar. They admit their signatures but deny seeing the dead body being fished out. They were declared hostile. 26. When the accused was examined under Section 313 Cr.P.C. he states that he, in fact, was not married to the deceased. The first two are witness to inquest and the later is village Chowkidar. They admit their signatures but deny seeing the dead body being fished out. They were declared hostile. 26. When the accused was examined under Section 313 Cr.P.C. he states that he, in fact, was not married to the deceased. He was conscious all along with the charges of murdering his wife. The whole prosecution case was that the appellant and deceased were married. The deceased was staying with the appellant. She was found dead chained with millstone and her dead body was tried to be concealed by drowning in a well. He was defending this definite case. He knows the consistent prosecution story of marriage and living together and the recovery of his wife from a well nearby his residence. He did not produce any evidence of any person to show that in fact he was not married to the deceased. He may have denied the marriage but he does not deny the fact that the deceased was staying with him. 27. We may point out that if the appellant, in fact, was not married to the deceased then why were the prosecution party trying to implicate the appellant. The only suggestion in this regard given by defence to P.W.8 is that the deceased having been separated from her husband of Dhoda was married at Barrahi to some one else to which the appellant protested and sought Panchayati and because of that he had been implicated. We are afraid that there is no basis to accept this suggestion as nothing has been brought on record in the shape of any Panchayati but one thing is clear that this suggestion itself predicates that the appellant was married to and/or living with the deceased. We have no reason to disbelieve the evidence of P.W.9, Shankar Choudhary, a ten years old son of the deceased. 28. Taking into consideration the evidence we are of the view that the prosecution has been able to establish the marriage as between the appellant and the deceased or at least a live in relationship till the end. It is also established that the deceased was staying with the appellant till she was recovered dead in the manner as noted above. 29. It is also established that the deceased was staying with the appellant till she was recovered dead in the manner as noted above. 29. In our view it is rightly urged by the State that it is a fit case in which in terms of Section 106 of the Evidence Act, onus would shift upon the appellant to explain the death because the deceased was all along living with appellant and was found within the vicinity of the matrimonial house. It was not accidental but homicidal death. 30. In that view of the matter the appellant not having been able to explain the death of the deceased in any manner, we have no option but to uphold the conviction and dismiss the appeal. Accordingly, the bail bond of the appellant is cancelled. The appellant shall now surrender before the trial court to serve out the remaining period of sentence. ?