JUDGMENT 1. (Oral) - This criminal appeal has been filed by accused appellant; namely-Ravindra @ Ravi assailing the judgment and order dated 03.05.2007 passed by the Court of Additional Sessions Judge, No. 1, Alwar (for short ‘the trial court') whereunder the accused-appellant has been acquitted of the charge framed for offence punishable under Section 498-A IPC but convicted for the offence punishable under Section 302 IPC and sentenced to life imprisonment with fine of Rs. 1,000/-, in default whereof, he would have to further undergo simple imprisonment for six months. 2. Factual matrix of the case is that a written report (Exhibit P-1) was submitted at Mahila Thana, Alwar by one Sanjay (PW.1) on 19.06.2005 stating therein that informant’s sister, namely Laxmi, was married with the appellant Ravindra @ Ravi on 04.05.1998 and since then, she was being beaten up and money was being demanded from her by her husband and in-laws. It was further alleged that all these persons brutally killed Laxmi and also tried to destroy the evidence. Informant’s sister Laxmi had marks of injuries on her leek and face, including ligature mark. It was further stated in the report (Exhibit P-1) that 2-3 days before the murder, the informant had made a telephonic call on which her/his sister responded by stating that she was in trouble and these persons were threatening to kill her. The persons, who killed informant’s sister were named as Bhagwan Sahai, father-in-law; Geeta Devi, mother-in-law; Ravindra Kumar, husband; Rakesh, Mahesh, Jai Shiv and Jagmohan, all brothers-in-law. 3. On the basis of aforesaid written report (Exhibit P-1), F.I.R. No. 48/2005 (Exhibit P-2) was registered at the aforesaid police station for offence under Sections 498-A and 302 IPC and investigation commenced. During the investigation, dead body of the deceased was subjected to inquest proceedings and post mortem examination. Site was also inspected and site plan was prepared, accused-appellant was arrested, recoveries were effected at his instance. Upon completion of investigation, charge sheet against the accused-appellant was filed in the Court of concerned Magistrate for offence, under Sections 498-A and 302 IPC. The case, being triable by Court of Sessions, was committed to the Court of Sessions Judge, Alwar, from where it was transferred to the trial court for trial. The trial court framed charges against the accused-appellant under Sections 498-A and 302 IPC. The accused-appellant denied the charges and claimed trial. The case, being triable by Court of Sessions, was committed to the Court of Sessions Judge, Alwar, from where it was transferred to the trial court for trial. The trial court framed charges against the accused-appellant under Sections 498-A and 302 IPC. The accused-appellant denied the charges and claimed trial. The prosecution produced 16 witnesses and exhibited 26 documents. Thereafter, the accused-appellant was examined under Section 313 Cr.RC. wherein he pleaded innocence. In defence, 2 witnesses were produced and 5 documents were exhibited. The trial court, on conclusion of the trial, vide judgment and order dated 03.05.2007 convicted and sentenced the accused-appellant in the manner indicated above. 4. Mr. V.R. Bajwa, learned counsel for the accused-appellant argued that the prosecution has miserably failed to bring home the guilt of the accused-appellant beyond reasonable doubt with the aid of cogent and convincing evidence. The medical evidence stands in conflict with the so-called story of the prosecution, creating a great doubt. Site plan does not lend corroboration to the ocular evidence of the prosecution. Most important witness, namely Asha Devi (PW.5), has turned hostile. It is argued that Poornima (PW. 6) happens to be a child witness, who was only 31/2 years of age at the time of the incident. Her testimony is replete with numerous in-congruencies rendering her to be a wholly unreliable witness. Even the trial court has not considered her to be a wholly reliable witness. In fact, the learned trial court has disbelieved her on major counts and only ventured to believe her in miniscule part. Learned counsel for the accused-appellant further argued that the trial court has completely disbelieved story of the prosecution qua demand of dowry and perpetration of cruelty, which resulted in acquittal of the accused-appellant under Section 498-A IPC. In such a situation, there does not seem to be any motive left on record for the appellant to kill his own wife. There is no direct evidence in the form of cogent and convincing eye witness account in the present case. The trial court has recorded conviction of the accused-appellant on the basis of circumstantial evidence, which does not pass the tests of settled principles of criminal jurisprudence pertaining to circumstantial evidence. From the entire medical evidence available on record, it is under grave doubt that the deceased died on account of any smothering. The trial court has recorded conviction of the accused-appellant on the basis of circumstantial evidence, which does not pass the tests of settled principles of criminal jurisprudence pertaining to circumstantial evidence. From the entire medical evidence available on record, it is under grave doubt that the deceased died on account of any smothering. There is strong possibility that the deceased died due to asphyxia which seems to have resulted from the poison consumed allegedly. In such a situation, the entire case of the prosecution goes under a grave penumbra of doubt. It is argued that initially the prosecution case was that the appellant and other family members, i.e. father-in-law, mother-in-law and brothers-in-law collectively killed the deceased, but none of the other family members of the family were put to trial in the case at hand. Thus the entire case of the prosecution stands on a very weak edifice. 5. Mr. V.R. Bajwa, learned counsel for the accused-appellant argued that neither in the written report (Exhibit P-1), nor in the statements of prosecution witnesses, there is any specific allegation as to the offence punishable under Section 302 IPC against the accused-appellant. Similar allegation was made against other family members of the accused-appellant that they used to beat the deceased and subject her to cruelty for demand of dowry. Sanjay (RW. 1 has made allegation against the accused-appellant and other members of his family that they demanded a sum of Rs. 1,00,000/- and a car in dowry. In cross-examination also, he further stated that his niece told him that all the accused were responsible for killing the deceased. This witness did not, in particular, speak anything against the husband i.e., the accused-appellant alone. Similarly, Ramswaroop (PW.2) has also made omnibus allegations against all the six accused, which included, apart from the appellant, his father, mother and brother Rakesh, Mahesh, Jai Shiv and Jagmohan. Ramkishore @ Ghoodmal (P.W.4) also made similar allegations against father-in-law, mother-in-law and brothers-in-law of the deceased. It is argued that Kamlesh (RW.3), mother of the deceased, in her statement has made allegations against other accused, i.e., mother-in-law, father-in-law, Rakesh, Jai Shiv and Mahesh, brothers-in-law and not against the accused-appellant and has rather stated that other accused used to instigate the deceased by demanding Rs. 1,00,000/- and a car. It is argued that Kamlesh (RW.3), mother of the deceased, in her statement has made allegations against other accused, i.e., mother-in-law, father-in-law, Rakesh, Jai Shiv and Mahesh, brothers-in-law and not against the accused-appellant and has rather stated that other accused used to instigate the deceased by demanding Rs. 1,00,000/- and a car. It is argued that in the present case it is difficult to pin pointedly say that the accused-appellant alone would be responsible for the' alleged murder of the deceased. 6. Learned counsel argued that application under Section 319 Cr.RC. was filed by the complainant before the trial court for joining remaining six accused against whom charge sheet was not filed by the police, but the trial court rejected said application. In a case like present one, where the evidence is common against so many accused, it is difficult to separate the case of one of the accused from other accused and rule of grain and chaff should be applied. In this connection, learned counsel for the accused-appellant has relied upon the judgment of the Supreme Court in Balaka Singh & Others v. The State of Punjab, AIR 1975 SC 1963 , wherein it was held that when the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the Court will have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution. Learned counsel for the accused-appellants has also relied upon the judgments of the Supreme Court in Mangat Ram v. State of Haryana, JT 2014 (6) SC 562 and Jumni and Others v. State of Haryana, JT 2014 (8) SC 235 . 7. Mr. V.R. Bajwa, learned counsel for the accused- appellant argued that presumption of Section 106 of the Indian Evidence Act cannot be raised in the present case because that law would be applicable only in the case of circumstantial evidence. In a case where the prosecution has come out with an eye witness, the said law cannot be pressed into service. Admittedly, in the present case, the prosecution has heavily relied upon the testimony of Poornima (RW.6), daughter of the deceased, therefore, Section 106 of the Indian Evidence Act cannot be applied in the present case. In a case where the prosecution has come out with an eye witness, the said law cannot be pressed into service. Admittedly, in the present case, the prosecution has heavily relied upon the testimony of Poornima (RW.6), daughter of the deceased, therefore, Section 106 of the Indian Evidence Act cannot be applied in the present case. In support of his argument, learned counsel for the accused-appellant has relied upon judgments of the Supreme Court in Murlidhar & Others v. State of Rajasthan, JT 2005 (5) SC 358 ; Shambhu Nath Mehra v. State of Ajmer, 1956 SC 404 (S) AIR V. 48 C71 ; Sawal Das v. State of Bihar, (1974) 4 SCC 193 ; Joshinder Yadav v. State of Bihar, (2014) 4 SCO 42 ; State of Rajasthan v. Thakur Singh, (2014) 12 SCC 211 ; Alber Oraon v. State of Jharkhand, (2014) 12 SCC 306 ; Joydeb Patra & Others v. State of West Bengal, (2014) 12 SCC 444 ; Raj Kumar v. State of Madhya Pradesh, (2014) 5 SCC 353 . Learned counsel for the accused-appellant argued that judgment of the Supreme Court in Raj Kumar (supra), being distinguishable, cannot be applied in the present case. The trial court erred in convicting the accused-appellant for offence punishable under Section 302 IPC, as the prosecution failed to prove any motive as to why the accused-appellant would murder his own wife. In the present case, charge for offence under Section 304B IPC was not framed against the accused-appellant because 7 years had elapsed between the date of marriage of the accused-appellant with the deceased and the date of the incident, but charge under Section 498-A IPC was framed against him. The trial court by detailed reasoning has recorded a categorical finding at page 17 of its judgment that offence under Section 498-A IPC was not proved and accordingly, acquitted the accused-appellant of that charge. 8. Learned counsel for the accused-appellant further argued that Poornima (P.W.6) was hardly 31/2 years of age at the time of incident. The defence had produced Manoj Kumar Soni (D.W.1), Secretary of Adarsh Vidhya Mandir, who stated that Poornima (P.W.6), on the day of incident, i.e. 18.06.2005 had come to school. When no one came to fetch Poornima (RW.6) even up to 12.30 in the noon, he took her with him at 1.30 RM. to the house of the accused. The defence had produced Manoj Kumar Soni (D.W.1), Secretary of Adarsh Vidhya Mandir, who stated that Poornima (P.W.6), on the day of incident, i.e. 18.06.2005 had come to school. When no one came to fetch Poornima (RW.6) even up to 12.30 in the noon, he took her with him at 1.30 RM. to the house of the accused. Besides, learned counsel for the accused-appellant argued that statement of Poornima (RW.6) was recorded by the police 11/2 months after the incident on 01.08.2005. Investigating Officer, Bijendra Singh (P.W. 16) has stated that Poornima (RW.6) did not appear before him earlier than 01.08.2005, nor she was produced by any one, though he issued requisition on two occasions. The complainant party, thus, had got time to tutor Poornima. A child witness can be relied only if her/his testimony is consistent and inspires confidence. Poornima (P.W.6) was living with complainant family and she stated only those things, which she was taught to speak. Her statement is disoriented inasmuch as in response to the first question of the trial court as to what was the colour of her clothes, she told blue colour as yellow. In response to the next question, she candidly admitted that she had come along with her aunt (‘mausi’) and grand mother (‘nani’). Poornima (P.W.6), in her police statement recorded under Section 161 Cr.RC. (D-2) as well as in her court statement, gave exaggerated version of the story by attributing roles not only to the appellant, but also to her grand father, grand mother and uncles (brothers-in-law of the deceased), therefore, her testimony cannot be accepted. She had gone to the extent of saying that the appellant had strangulated neck of her mother whereas according to the prosecution, which is relying on the medical evidence? the deceased was given smothering. Recovery of pillow vide Exhibit P-11 has been made at the instance of the accused-appellant from a room and not from any concealed place. Signs of red lead (‘sindur’) of the deceased on the pillow also does not prove any thing. The pillow admittedly did not contain any blood mark or otherwise any sign of struggle by the deceased. It is, therefore, prayed that the appeal be allowed and impugned judgment and order passed by the learned trial court be quashed and set aside and the accused-appellant be acquitted of the charge under Section 302 IPC. 9. Mr. The pillow admittedly did not contain any blood mark or otherwise any sign of struggle by the deceased. It is, therefore, prayed that the appeal be allowed and impugned judgment and order passed by the learned trial court be quashed and set aside and the accused-appellant be acquitted of the charge under Section 302 IPC. 9. Mr. V.S. Godara, learned Public Prosecutor supported the judgment passed by the trial court and submitted that the accused-appellant has rightly been convicted for committing murder of his wife, which is evident from post mortem report (Exhibit P-15). Learned Public Prosecutor submitted that medical board opined that cause of death is asphyxia due to smothering, however, at the same time, medical board observed that viscera are preserved to exclude out any super added poisoning. Foresnsic Science Laboratory Report (Exhibit P-16) has proved that samples of stomach viscera, piece of small intestine; piece of liver, piece of spleen, piece of kidney and blood sample of the deceased gave positive tests for the presence of Organophosphorus insecticide and gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates and tranquillizers. This also proved that the deceased was administered poison by the accused-appellant, which led to her death. Learned Public Prosecutor referred to statement of Dr. Phool Singh Chaudhary (P.W. 12), who stated that cause of death of the deceased was asphyxia due to smothering, which was result of closing of face and nose by any cloth or any object made of cloth. Learned Public Prosecutor also referred to statement of Asha Devi (P.W.5), who stated that the deceased was under stress and most of the times, she used to stay with her parents in their house. Ramkishore @ Gudhmal (P.W. 4) also stated that relations between the appellant and the deceased were very tense. He referred to para 32 of the judgment of the trial court and submitted that the trial court found 12 circumstances proved against the accused-appellant, ; which made a chain of circumstances pointing towards his guilt and the accused-appellant has, therefore, been rightly convicted by the trial court. It is argued that all these aforesaid circumstances were put to the accused-appellant under Section 313 Cr.RC., but he failed to give satisfactory explanation. It is, therefore, prayed that the appeal be dismissed. 10. It is argued that all these aforesaid circumstances were put to the accused-appellant under Section 313 Cr.RC., but he failed to give satisfactory explanation. It is, therefore, prayed that the appeal be dismissed. 10. We have given our thoughtful and anxious considerations to the rival submissions, scanned the material on record and studied the cited decisions. 11. Perusal of the judgment passed by the trial court clearly shows that the trial court has relied upon the testimony of Sanjay (P.W.1); informant and brother of the deceased; Ram Swaroop (P.W.2), father of the deceased; Kamlesh (P.W.3) mother of the deceased; Ram Kishore @ Gudhmal (PW.4) uncle (‘fufa’) of the deceased and Poornima (P.W.6), daughter of the deceased who was of the age of 31/2 years at the time of incident and 4-5 years old at the time of recording of her statement before the trial court. Cumulative reading of statements of aforesaid witnesses would clearly show that these witnesses made allegations of demand of dowry and cruelty against all family members of the accused-appellant, i.e. Geeta Devi, his mother, Bhagwan Sahai, his father, Rakesh, Jai Shiv, Mahesh and Jag Mohan, his brothers. It is alleged that they were not satisfied with the dowry that was given to the appellant in his marriage by the parents of the deceased and therefore, they used to demand a sum of Rs. 1,00,000/- to enable the accused-appellant to start a business and also a car. Ramswaroop (P.W.2), father of the deceased has in fact stated that father of the accused-appellant was habitual drunkard and he used to demand dowry and money in the state of intoxication. This witness further stated that he gave a sum of Rs. 50,000/- after the marriage to Bhagwan, father of the accused-appellant. Kamlesh (P.W.3), mother of the deceased has made similar allegations against all family members of the accused-appellant. Ramkishore @ Gudhmal (PW.4), uncle (‘fufa’) of the deceased has also stated that whenever the deceased met him, she used to complain against her mother-in-law; father-in-law, brothers-in-law and her husband. In fact, statement of this witness would give the impression that focus of their allegation is more against the family members of the accused-appellant than the appellant, who was husband of the deceased. 12. In fact, statement of this witness would give the impression that focus of their allegation is more against the family members of the accused-appellant than the appellant, who was husband of the deceased. 12. Then comes the statement of Poornima (RW.6), child witness, who was aged 31/2 years at the time of incident and was approximately 4-5 years old at the time of recording of her statement before the trial court. Interestingly; this witness also made allegations against mother-in-law; brothers-in-law and certain allegations were made against father-in-law by this witness in a dilated form. It is, thus, evident that prosecution witnesses, all throughout, had been making identical allegations against all members of the family of the accused-appellant and not against the appellant. In fact, there being no direct evidence, case of the prosecution is entirely based on the circumstantial evidence, except the fact that the accused-appellant happens to be husband of the deceased where for Section 106 of the Indian Evidence Act has additionally been pressed into service by the trial court. All other evidence is common against all family members of the accused-appellant, yet the investigating agency has chosen to proceed only against the accused-appellant and not filed any charge sheet against any other accused. As held by the Supreme Court in Balaka Singh & Others (supra) that when the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the Court will have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the entire prosecution case will have to be discarded as it could not be possible for the court to make out a new case to convict the accused-appellant alone. 13. Adverting now to the testimony of Poornima (P.W.6) to examine whether the manner in which she had deposed before the trial court, her evidence could at all be relied to convict the accused-appellant. In this context, we may notice judgment of the Supreme Court in State of Madhya Pradesh v. Ramesh & Another, (2011) 4 SCC 786 wherein the Apex Court, after revisiting its previous judgments, laid down the law as how the evidence of a child witness should be assessed. Para 14 of the judgment is worth reproduction, which is as under: "14. Para 14 of the judgment is worth reproduction, which is as under: "14. In view of the above, the law on the issue can be summarised to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition." 14. The Supreme Court in Gagan Kanojia & Another v. State of Punjab, (2006) 13 SCC 516 held that part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. 15. The Supreme Court in State of Uttar Pradesh v. Krishna Master & Others, (2010) 12 SCC 324 held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature. 16. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature. 16. The Supreme Court in Himmat Sukhadeo Wahurwagh & Others v. State of Maharashtra, (2009) 6 SCC 712 held that the evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to ,him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. 17. The Supreme Court in Nivrutti Pandurang Kokate & Others v. State of Maharashtra, (2008) 12 SCC 565 while dealing with the child witness has observed as under: "10.6... 7.... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial judge who notices his manners, his apparent possession or lack of intelligence, and the said judge may resort to any examination which will tend to disclose his i capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness." 18. The Supreme Court in Panchhi & Others v. State of U.P., (1998) 7 SCC 177 while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that, "the evidence of a child witness would always stand irretrievably stigmatised. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring." 19. In Mangoo and Another v. State of Madhya Pradesh, AIR 1995 SC 959 , the Supreme Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring. 20. The court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring. 20. In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54 , the Supreme Court examined the provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise. The Supreme Court further held as under: "It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate." 21. The Supreme Court in Raj Kumar (supra) also followed its judgment in State of Madhya Pradesh v. Ramesh & Another (supra) and observed that the court has to form an opinion from circumstances as to whether the witness is able to understand the duty of speaking the truth and further in a case of child witness, the court has to ascertain that the witness might have not been tutored. Evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him. Trial court must ascertain as to whether a child is able to discern between right or wrong and it may be ascertained only by putting questions to him. Evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him. Trial court must ascertain as to whether a child is able to discern between right or wrong and it may be ascertained only by putting questions to him. When we examine statement of Poornima (P.W.6), in the light of aforesaid decisions, we find that this witness had been produced before the investigating agency for the first time on 01.08.2005 by the complainant party, i.e., 11/2 months after the incident and her testimony before the trial court was recorded near about one year thereafter on 10.07.2006. That would mean that she was approximately 4-/12 years of age at that time. When she was asked by the trial court that what was the colour of her clothes, she told the colour to be blue whereas as per the note of the trial court it was of yellow colour. Besides, possibility of her being tutored by the complainant party cannot be ruled out because the very second question that was put to her by the trial court was answered correctly that she had come with her ‘mausi’ sister of the deceased and grand mother ‘nani’) mother of the deceased. This witness made absolutely new kind of allegation that father-in-law of the deceased caught her head by hairs and hit the same on the wall and the appellant strangulated her neck. Uncle (‘chacha)’ tied her hands. Amma (grand mother) poured water into mouth of the deceased and closed the same by putting cloth into the mouth, thus, suggesting administration of poison. Then, ‘amma’ (grand mother) had driven all of them out of the room and then bolted the room from inside. When she was asked that when did her mother die, this witness stated that she died three years ago and thereafter, she was staying now with her ‘mausi’ and ‘nani’. Thereafter, she stated that her father, i.e. appellant and grand mother ('amma') took the deceased down, which would mean that the deceased had died of hanging and was taken off from the hook. Though, she denied that portion of her statement recorded under Section 161 Cr.P.C. (Exhibit D-2) marked from A to B that it was she and her uncle (‘kaku’), who took the deceased down from the fan. Though, she denied that portion of her statement recorded under Section 161 Cr.P.C. (Exhibit D-2) marked from A to B that it was she and her uncle (‘kaku’), who took the deceased down from the fan. This statement clearly shows that the witness was not mature enough to understand all the questions and implication of her replies. It was never the case of the prosecution that the deceased died of hanging or she was put to death and thereafter hanged by the accused so as to make it a case of hanging. The fact that she was tutored is also evident from the fact that she made an improvement over her original statement and made allegation that mother-in-law of the deceased (‘amma’) poured water into her mouth and filled the mouth with the cloth which implies that she was administered poison in the drink. It is, therefore, highly unsafe to rely on the testimony of this witness as apart from the fact that she appears to have been tutored by the members of the complainant party, she does not appear to be mature enough to understand the questions so as to answer them correctly. 22. Besides, as per the prosecution, the accused-appellant was not the only inmate of the house, in which the deceased died and other family members, i.e., three brothers-in-law; mother-in-law and father-in-law were also residing in that house and despite allegations levelled against them, none of them has been arrayed as accused in the present case. 23. Coming now to the argument that whether the trial court could have invoked Section 106 of the Indian Evidence Act so as to convict the accused-appellant because he failed to give explanation to the fact that how and in what circumstances, the deceased died, which was within his special knowledge, we may, in this connection, refer to judgment of the Supreme Court in Murlidhar & Others (supra) and number of other judgments cited by learned counsel for the accused-appellant. In view of the what has been held in these judgments, we are persuaded to hold that the legal principle of shifting the burden of proof as per Section 106 of the Indian Evidence Act onto the accused, would not apply to a case where the prosecution has produced eye witness. In view of the what has been held in these judgments, we are persuaded to hold that the legal principle of shifting the burden of proof as per Section 106 of the Indian Evidence Act onto the accused, would not apply to a case where the prosecution has produced eye witness. In a case where there are eye witnesses, everything would depend on the fact whether or not, version of such eye witnesses is believed? The prosecution having produced the eye-witnesses, cannot then fall back upon the principle embodied in Section 106 of the Evidence Act or otherwise on circumstantial evidence. The principles of law embodied in Section 106 of the Evidence Act have been applied in a catena of decisions cited by learned counsel for the accused-appellant. It is not even a case where the trial court has disbelieved eye witness. It has rather believed sole eye witness Poornima (P.W.6) and convicted the accused-appellant. The Supreme Court in Murlidhar & Others (supra) field as under: “20. In Mir Mohammad Omar (supra) it was established that the accused had abducted the victim, who was later found murdered. The abductors had not given and explanation as to what happened to the victim after he was abducted by them. The sessions Court held that the prosecution had failed to established the charge of murder against the accused persons beyond any reasonable doubt as there was “a missing link in the chain of events after the deceased was last seen together with the accused persons and the discovery of the deceased at Islamia Hospital”. Rejecting the said contention this Court observed (Vide para 31): “The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. The doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.” This Court further observed thus (vide para 33): "Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case." 21. The judgment of Vivian Bose, J. in Shambu Nath Mehra v. State of Ajmer, 1956 SCR 109 lays down the legal principle underlying the shifting of burden of proof under Section 106 of the Evidence Act thus (vide para 38) : "This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are ‘especially’ within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word ‘especially’ stresses that. It means facts that are pre-eminently or exceptionally within his knowledge." 22. In our judgment, the High Court was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. The word ‘especially’ stresses that. It means facts that are pre-eminently or exceptionally within his knowledge." 22. In our judgment, the High Court was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. As pointed out in Mir Mohammand Omar (supra) and Shambu Nath Mehra (supra), the rule in Section 106 of the Evidence Act would apply when the facts are "especially within the knowledge of the accused" and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, "especially within the knowledge of the accused." In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the principle in Section 106 could not apply. On the other hand, the prosecution proceeded on the footing that there were eye witnesses to the fact of murder. The prosecution took upon itself the burden of examining Babulal (PW 5) as eye witness. Testimony of Ram Ratan (PW 7) and Isro (PW 10) shows that their agricultural land was situated in a close distance from the house of Khemaram. As rightly pointed out by the High Court, it is highly unlikely and improbable that their kith and kin Ramlal would have been given beating resulting in his death by the accused-appellants while keeping lights of their house on and door of the room opened. It is also unlikely that the accused- appellants would have taken the risk of dragging Ramlal to the house of Khemaram, which was situated in the vicinity of agricultural land and well of Isro (PW 10), the father of Ramlal. The evidence of Govind (PW 13) also appears to be unnatural, as he had not disclosed the incident to anybody. The High Court has correctly analysed that all the witnesses, namely, Babulal (PW 5), Ram Ratan (PW 7), Isro (PW 10) and Govind (PW13) are wholly unreliable as their evidence is replete with contradictions and inherent improbabilities." In Sawal Das (supra), the Supreme Court held as under: "9. The High Court has correctly analysed that all the witnesses, namely, Babulal (PW 5), Ram Ratan (PW 7), Isro (PW 10) and Govind (PW13) are wholly unreliable as their evidence is replete with contradictions and inherent improbabilities." In Sawal Das (supra), the Supreme Court held as under: "9. Learned Counsel for the appellant contended that Section 106 of the Evidence Act could not be called in aid by the prosecution because that section applies only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as the circumstances in which or the intention with which an accused did a particular act alleged to constitute an offence. The language of Section 106 Evidence Act does not, in our opinion, warrant putting such a narrow construction upon it. This Court held in Gurcharan Singh v. State of Punjab, AIR 1956 SC 460 , that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharging his burden of creating a reasonable belief, that circumstance, absolving him from criminal liability may have existed, is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt. 10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. The crucial question in the case before us is: Has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt?" 24. Moreover, there is yet another significant aspect of the matter which needs to be noted here that in the post mortem report (Exhibit P-15), definite cause of death opined by the medical board was asphyxia due to smothering. Poornima (PW.6) seems to be suggested it to be a case of both strangulation or hanging. Dr. Phool Singh Chaudhary (PW. Moreover, there is yet another significant aspect of the matter which needs to be noted here that in the post mortem report (Exhibit P-15), definite cause of death opined by the medical board was asphyxia due to smothering. Poornima (PW.6) seems to be suggested it to be a case of both strangulation or hanging. Dr. Phool Singh Chaudhary (PW. 12) has though referred to two injuries on the person of the deceased which were abrasions, but has proved the opinion of the medical board according to which cause of death was asphyxia due to smothering. However, at the same time medical board observed that viscera are preserved to exclude out any super added poisoning. Forensic Science Laboratory Report has been produced as Exhibit P-16, according to which on chemical examination of samples of stomach viscera, piece of small intestine; piece of liver, piece of spleen, piece of kidney and blood sample gave positive tests for the presence of Organophosphorous insecticide and gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates and tranquillizers. Dr. Phool Singh Chaudhary (RW.12) has stated that Organophosphorus is commonly known as insecticide, which is used for killing insects and if it is used in excessive quantity, a person can die. He has denied suggestion that medical board has wrongly given opinion as to the cause of death of the deceased. But, when now there are two approximate causes of death, the possibility of the deceased having died due to consumption of insecticide (Organophosphorus) is quite apparent and visible which makes the case of the prosecution that the deceased died of asphyxia due to smothering doubtful. Guilt of the accused-appellant on the charge of offence under Section 302 IPC cannot therefore be held to have been proved beyond reasonable doubt. 25. In view of above discussion, we are persuaded to allow the appeal and set aside the conviction of the accused-appellant under Section 302 IPC. The appeal is, accordingly, allowed. Impugned judgment and order dated 03.05.2007 passed by the trial court is quashed and set aside and the accused-appellant is acquitted of the charge framed under Section 302 IPC. Accused-appellant Ravindra @ Ravi, who is in jail for last more than ten years be released forthwith, if he is not required to be detained in any other case. 26. Impugned judgment and order dated 03.05.2007 passed by the trial court is quashed and set aside and the accused-appellant is acquitted of the charge framed under Section 302 IPC. Accused-appellant Ravindra @ Ravi, who is in jail for last more than ten years be released forthwith, if he is not required to be detained in any other case. 26. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant, namely, Ravindra @ Ravi is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court. *******