Judgment Aditya Kumar Trivedi, J. Sole appellant, Rajeshwar Rai who has been found guilty for an offence punishable under Section 302 IPC vide judgment dated 14.08.2014 and directed to undergo RI for life as well as to pay fine of Rs.10,000/- in default thereof, to undergo SI for one year additionally vide order of sentence dated 21.08.2014 by 5th Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 818/2013, has preferred the instant appeal. 2. Shorn of unnecessary details, Bachchi Devi (PW-5) had filed a written report on 01.12.2012 alleging inter alia that her daughter Soni Kumari aged about 14 years had gone with she-goat for grazing at Sareh. There was Keshaw crop in the field of appellant which her daughter uprooted to eat, during midst thereof, Kanchan Kumari, (daughter of appellant, Rajeshwar Rai) and Chandan Devi wife of late Thakur Rai arrived, caught hold her, dragged her, assaulting, towards their house. The appellant also arrived who also assaulted her daughter and after confining her in a room, hanged her on account of which she died. When she along with others came to the house of Rajeshwar Rai to know about her daughter, she had seen the dead body of her daughter lying on the floor in a room, lying east to verandah having western front. Santosh Mahto, Sanjay Mahto, Dilip Kumar, Harendra Mahto had seen the occurrence and also found presence of string hanging from Baneri. 3. On the basis of aforesaid written report, Motipur P.S. Case No. 268/2012 was registered against all the three accused under Section 302/34 of the IPC and investigation commenced, concluded by way of filing of charge-sheet against appellant, Rajeshwar Rai and Chandan Devi (since acquitted) and on the basis thereof, cognizance was taken, consequent thereupon, trial commenced and concluded in a manner, subject matter of instant appeal. 4. From the mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C., the defence case happens to be complete denial of the occurrence as well as that of false implication. 5. In order to prove its case, prosecution had examined all together nine PWs out of whom, PW-1 Harendra Mahto, PW-2 Jhigan Mahto, PW-3 Ram Pravesh, PW-4 Asrafi Mahto, PW-5 Bachchi Devi (informant), PW-6 Asarfi Thakur, PW-7 Dr. Bipin Kumar who had conducted postmortem, PW-8 I.O. and PW-9 Gita Devi. 5. In order to prove its case, prosecution had examined all together nine PWs out of whom, PW-1 Harendra Mahto, PW-2 Jhigan Mahto, PW-3 Ram Pravesh, PW-4 Asrafi Mahto, PW-5 Bachchi Devi (informant), PW-6 Asarfi Thakur, PW-7 Dr. Bipin Kumar who had conducted postmortem, PW-8 I.O. and PW-9 Gita Devi. Side by side, prosecution had also exhibited Ext-1, postmortem report, Ext-2, formal First Information Report, Ext-3, endorsement over written report and Ext-4, inquest report. In spite of seizure list available on the record, the same has not been exhibited due to reason best known to the prosecution. 6. While assailing the judgment of conviction and sentence, it has been submitted on behalf of the appellant that the learned lower court had acted in a mechanical manner during course of appreciation of evidence of PWs and on account thereof, the finding recorded by the learned trial court happens to be un-sustainable in the eye of law. It has further been submitted that during trial none of the material witnesses has supported the case of the prosecution, more particularly, regarding presence of appellant as well as regarding activities of the appellant during course of commission of crime nor claimed to be an eyewitness to occurrence, so alleged and on account thereof, inference of learned trial court that appellant happens to be responsible for causing death of the deceased was based upon own imagination than the substantive evidence available on record. It has further been submitted that none of the witnesses have stated presence of appellant at his house during course of alleged occurrence apart from the fact that house in question is occupied by the joint family, therefore, individual liability of appellant was not at all legally permissible. To buttress such plea, it has been submitted that while acquitting co-accused, Chandan Devi, the learned trial court had considered the same but deflected therefrom, while convicting the appellant. It has further been submitted that in terms of Section 101 of the Evidence Act, obligation was upon the prosecution to support its case beyond shadow of doubts. The prosecution, in the facts and circumstances of the case, was under obligation to prove that deceased was in company of appellant inside his house and then, her dead body was found. It has further been submitted that in terms of Section 101 of the Evidence Act, obligation was upon the prosecution to support its case beyond shadow of doubts. The prosecution, in the facts and circumstances of the case, was under obligation to prove that deceased was in company of appellant inside his house and then, her dead body was found. So that the obligation in terms of Section 106 of the Evidence Act would have been fastened against the appellant attracting explanation at his end regarding death of deceased. Not only this, it has also been submitted that the dead body was found at the outer room adjacent to verandah which was open and easily accessible. 7. Furthermore, the house is situated by the side of road. Therefore, the prosecution was under obligation, in case, willing to juxtapose the appellant as a culprit, to adduce by cogent and reliable evidence that none other than appellant, had presence at the relevant time inside the room along with deceased. Contrary to it, the informant herself had stated presence of appellant in his field up to 4:00 P.M. while PW-2 had stated that so many persons were raising hulla regarding presence of victim inside the house of appellant. None of these persons were identified nor examined and in the aforesaid background, as well as having location of the dead body at the outer room, sufficiently exonerate the appellant, not only from the explaining the death of deceased but also suggesting somebody else to be the author of the crime and on that very score at least, appellant is found entitled for benefit of doubt. 8. It has also been submitted that when same set of allegation has been attributed to both the accused, same set of evidences have been produced by the prosecution during course of trial against both the accused, same set of status happens to be of both the accused and the trial court, while acquitting the co-accused, had rejected the evidence, then in that event, there was no justification for the learned trial court to convict the appellant on the basis of same set of evidence. So submitted that appeal is fit to be allowed. 9. On the other hand, learned APP opposed the prayer and submitted that there is no dispute with regard to recovery of dead body from the house of the appellant. So submitted that appeal is fit to be allowed. 9. On the other hand, learned APP opposed the prayer and submitted that there is no dispute with regard to recovery of dead body from the house of the appellant. Be it from inner room or outer room, is immaterial. The material fact is that house in question belonged to appellant and on account thereof, it was duty of the appellant to have properly explained regarding presence of dead body inside his house and having failed on that score, rightly has been convicted attracting application of Section 106 of the Evidence Act. 10. From the nature of the evidence adduced on behalf of prosecution during course of trial, it is apparent that all have gone volte face to the prosecution. Even the informant, PW-5 and her husband Asarfi Mahto PW-4 failed to support the case. Although, during investigating stage, they all have claimed to be an eye-witness to occurrence. Therefore, the case has to be seen, evidences have to be scrutinized and circumstances have to be perceived in order to adjudge whether conviction and sentence recorded by the learned trial court appears to be appreciable. In order to judge the same, first of all, evidences of material witnesses are scrutinized. 11. PW-1, Harendra Mahto is uncle of deceased who had exhibited inquest report. So far other part of his evidence is concerned, he has been declared hostile as failed to divulge the event however, narrated regarding death of deceased. During cross-examination, he had deposed that deceased was not of sound mental condition. 12. PW-2 is Jhigan Das who had stated that the occurrence is of about 1 year and 2 months. Soni Kumari was mentally retarded girl. She had gone inside courtyard of appellant, Rajeshwar Rai. None was present inside his house. Subsequently, what happened he is unable to say but she died inside the house. On hearing alarm of lads, he had gone there. She had not uprooted Keshaw or sweet potato on that day. Darogaji had not recorded his statement. During cross-examination, he had stated that he had not seen the occurrence. 13. PW-3 is Ram Pravesh Ram. He had stated that Soni Kumari, the deceased was his neighbour. Occurrence is of about a year ago. She was mentally retarded. He came to know that she committed suicide. Darogaji had not recorded his statement. During cross-examination, he had stated that he had not seen the occurrence. 13. PW-3 is Ram Pravesh Ram. He had stated that Soni Kumari, the deceased was his neighbour. Occurrence is of about a year ago. She was mentally retarded. He came to know that she committed suicide. Rajeshwar Rai, Chandan Devi, Kanchan had not confined her in their house nor they committed murder. He had not made statement before the police and on account thereof, was declared hostile. During cross-examination, he had stated that he came to know about the occurrence. He had not seen the occurrence. 14. PW-4 is Asarfi Mahto, father of the deceased. He had stated that Soni was his daughter. Occurrence is of about a year ago. He was at Delhi. After getting telephonic information, he rushed. He inquired from his wife who disclosed that she (Soni) had gone to the house of appellant. How she died, he could not get the clue. He had not made statement before the police and then thereafter, he was declared hostile. During cross-examination, he had stated that he is unaware of the fact regarding mental condition of his daughter but on the relevant day, she had quarrel with her mother. In para-5, he had stated that his daughter was employed under accused persons and on account thereof, she regularly used to visit at their place. He also failed to disclose whether there was any sort of strained relationship with accused persons. 15. PW-5 is the informant who had disclosed that the occurrence is of a year ago. On that day at about 10:00 a.m., she had gone to work as a labourer. She returned at about 4:00 P.M.. She found her daughter Soni Kumari dead in the house of Rajeshwar Rai. She had gone there and seen the dead body of her daughter lying on the darwaza of the Rajeshwar Rai. How she died, she had not seen. She had filed the case before the police. Thereafter, she was declared hostile. During cross-examination, she had stated that her daughter sometimes suffered from mental deformity and used to loiter. Occasionally, she used to give sermon. In para-4, she had stated that she had gone to dig out potato from the earth. She used to work in the field of Rajeshwar. She along with her daughter used to visit house of Rajeshwar regularly. During cross-examination, she had stated that her daughter sometimes suffered from mental deformity and used to loiter. Occasionally, she used to give sermon. In para-4, she had stated that she had gone to dig out potato from the earth. She used to work in the field of Rajeshwar. She along with her daughter used to visit house of Rajeshwar regularly. In para-5, she had further stated that one of the daughters of Rajeshwar was constantly ill and she was being cared accordingly. In para-6, she had stated that Kanchan Kumari, the accused happens to be student of Motipur High School. On the alleged date, she had gone there. School is situated 7 to 8 Kilometers away from her house. In para-7, she had stated that she had seen appellant in his field for the whole day. In para-8, she has stated that she is not aware of the fact that as to how her daughter died. She had launched case as per direction of the people. 16. PW-6, Asarfi Thakur blatantly refused to support the prosecution case and on account thereof, was declared hostile. During cross-examination he had stated that deceased was not of mentally sound. 17. PW-9, Gita Devi had stated that on the alleged date and time of occurrence, she had gone to harvest parry. At about 2:00 P.M., she came back and found presence of mob whereupon she had gone there and found Soni Kumari dead. She had got no knowledge as to how Soni Kumari died. Subsequently thereof, she was declared hostile. In cross-examination, she had stated that she had not seen the occurrence. 18. PW-7 is the doctor who had found following ante-mortem injuries on the person of deceased:- (I) One ligature mark over middle of neck just below thyroid cartilage 11” x ¾” passing transversely and encircling the neck completely. On dissection of neck— subcutaneous tissues and muscles of the neck were lacerated. Trachea was congested with fracture of tracheal rings with blood clot. (II) Abrasion 3” x 1” and 1- ½” x ¾” over back of chest. On opening the abdominal cavity and chest cavity, internal abdominal viscera were congested, both lungs were also congested. In the opinion of PW-7, deceased died due to asphyxia as a result of ante-mortem strangulation. Time elapsed since death 12-14 hours. (II) Abrasion 3” x 1” and 1- ½” x ¾” over back of chest. On opening the abdominal cavity and chest cavity, internal abdominal viscera were congested, both lungs were also congested. In the opinion of PW-7, deceased died due to asphyxia as a result of ante-mortem strangulation. Time elapsed since death 12-14 hours. During cross-examination, he had stated under para-4 that if one hangs by rope this type of injury cannot occur. However, at para-6 had stated that this type of injury can be caused by assault. 19. PW-8 is the I.O. He had stated that on the alleged date, after registration of the case on the written report of Bachi Devi, he was entrusted with the investigation by the O/C. In para-4, he had gone to place of occurrence, inspected it, prepared inquest report. Further, detailed place of occurrence which happens to be asbestos roofed house lying east to village road having northern front. The dead body was lying on the floor of eastern room facing west. This house belongs to Rajeshwar. He had identified the P.O. as North, Darwaza of appellant, South, Ramesh Rai, East, cultivable land of Rajeshwar, West- Village Road. He had prepared inquest report in presence of witnesses (Ext). He had recorded statement of the witnesses (so named) who have supported the prosecution case. Received postmortem report and then submitted the charge-sheet against Rajeshwar Rai and Chandan Devi keeping investigation pending against Kanchan Kumari. During cross-examination, at para-8, he had stated that none of the witnesses has claimed to be eyewitness to occurrence. In para-9, he had not found blood coming out from eyes, nose and ears. Tongue was also not protruded. In para-10, he had stated that P.O. is a room of asbestos roofed house of Rajeshwar. He had not mentioned the height of roof of the room, nor he is remembering. He had not mentioned in the case diary regarding presence of Chauki. In para-11 he had stated that he had not mentioned in the case diary whether at the time of inspection articles kept in the house were in disorganized manner. In para-12 of the cross-examination, he had stated that string was not found near the dead body of deceased but it was found hanging from beam. He had not mentioned numbers of beam. He was not able to disclose whether it was of iron or wooden. In para-12 of the cross-examination, he had stated that string was not found near the dead body of deceased but it was found hanging from beam. He had not mentioned numbers of beam. He was not able to disclose whether it was of iron or wooden. However, he had mentioned length of the string as three feet. In para-13, he had further stated that he had not investigated with regard to mental condition of the deceased. In para-14, he had further disclosed that the house of the deceased lies west to the road while the house of accused lies east to the road. In para-16, he had stated that he had not seen any ailing girl inside the house of Rajeshwar. He had further stated that when he reached at the house of appellant, it was locked. 20. So, from analyzing ocular evidence, it is apparent that the dead body of deceased was found in a room lying east having western face of the house of the appellant and on this score, there happens to be no challenge on behalf of appellant. Although, none claimed to be an eye witness to occurrence, but PW 2 had stated presence of deceased inside house of appellant and no cross-examination has been made on behalf of appellant to discredit aforesaid place of evidence. Furthermore, this PW also speaks regarding murder of deceased then thereafter, although he narrated that none was present at the house. As such, proximity of murder just after having deceased inside house is found from his deposition. Other PWs have also consistently deposed regarding presence of dead body inside the house of Rajeshwar, which has also been affirmed by the objective finding of Investigating Officer PW-8. 21. Now coming to the cause of death of deceased, from medical evidence it is apparent that death occurred due to asphyxia on account of strangulation and the defence on his own got it explained when the doctor PW-7 at para 6 had stated that “this type of injury can be caused by assault”. 22. It is basic principle, witnesses may be lie but not the circumstances. None of the PWs had stated that they have seen the deceased hanging from beam. None of them had stated that they lie down the deceased on floor after cutting string. 22. It is basic principle, witnesses may be lie but not the circumstances. None of the PWs had stated that they have seen the deceased hanging from beam. None of them had stated that they lie down the deceased on floor after cutting string. Investigating Officer during course of inspection of room had not found string near about dead body, rather only three feet long string was found over beam having neither been affixed with beam nor having gallows knot. Furthermore, from the cross-examination, it is apparent that defence had cross-examined them through suggestive question (leading) that they have not seen the occurrence. That means to say, commission of occurrence is admitted. It is further evident that there is no case of appellant that the house in question does not belong to him nor the house being abandoned. So owner of the house being habitable is also out of disputation. 23. Submission made on behalf of appellant that the room, being located at outside was easily accessible to others, an on account thereof, presence of dead body inside the said room will not cast an obligation on the appellant to explain the same has got no legal relevancy because of the fact that appellant failed to cross-examine the witness on that very score, much less to the Investigating Officer. The law on this score has already been settled by the Hon?ble Apex Court in Mahavir Singh v. State of Haryana as reported in 2014 Cr.L.J. 3228 which is as follows:- 13. It is a settled legal proposition that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised. (Vide: Atluri Brahmanandam (D), Thr. LRs. v. Anne Sai Bapuji, AIR 2011 SC 545 ; and Laxmibai (dead) Thr. L.Rs. & Anr. v. Bhagwantbuva (dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 ). 24. In the case of Paulmeli v. Tamil Nadu, Tr. Insp. Of Police as reported in 2014 Cr.L.J. 3240, under para-11 the same view has also be reiterated which is quoted herein below:- “11. L.Rs. & Anr. v. Bhagwantbuva (dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 ). 24. In the case of Paulmeli v. Tamil Nadu, Tr. Insp. Of Police as reported in 2014 Cr.L.J. 3240, under para-11 the same view has also be reiterated which is quoted herein below:- “11. More so, with respect to various issues raised by the learned counsel for the appellants in respect of the injuries found on the person of the deceased, questions have not been put to the doctor who conducted the postmortem when he appeared in the witness box. In fact, he was the only competent person who could have furnished the explanation for all such issues. It is a settled legal proposition that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised. (Vide: Atluri Brahmanandam (D), Thr. LRs. v. Anne Sai Bapuji, AIR 2011 SC 545 ; and Laxmibai (dead) Thr. L.Rs. & Anr. v. Bhagwantbuva (dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 ): (2013 AIR SCW 949). 25. Nor the court will presume such event as it did not satisfy ingredients of Section 114 of the Evidence Act. Apart from this, there happens to be another lapse on the part of appellant who did not cross-examine Investigating Officer over objective finding as under para-4 of his evidence, the Investigating Officer had not deposed that the room was lying at the verandah. Hence, submission raised on behalf of appellant to this extent finds no corroborative substance nor it is found legally acclaimed. 26. Another deficient circumstance is found exposed after going through statement of appellant under Section 313 Cr.P.C.. Hence, submission raised on behalf of appellant to this extent finds no corroborative substance nor it is found legally acclaimed. 26. Another deficient circumstance is found exposed after going through statement of appellant under Section 313 Cr.P.C.. He had simply denied the incriminating substance on being confronted in following manner:- 1- iz’u & D;k vkius xokgksa dk c;ku lquk gS \ m0& th gkWa 2- iz0 & vkids fo:) lkf{k;ksa dk lk{; gS fd fnukad 01@2@12 xzke & eksjlaMh] Fkkuk&eksrhiqj] ftyk& eqtQjiqj esa lksuh dqekjh cdjh ysdj ljsg esa pjkus x;h Fkh] vkSj eqnkyg jkts’oj jk; ds [ksr ls dS’kksj [kksn fy;k Fkk \ m0& th ugha iz0 & vkids fo:) lkf{k;ksa dk lk{; gS fd lksuh dqekjh dks vius [ksr ls dS’kksj m[kkM+rs gq, idM+ fy;k vkSj vU; eqnkyg ds lkFk mls ekjrs ihVrs o ?klhVrs gq, vius ?kj ys vk;s o tcjnLrh ?kj dk fdokM+ can djds mlds xnZu nckdj jLlh yxkdj cusjh esa yVdk fn;k ftlls mldh e`R;q gks x;h \ m0& th ugha Ikz0& lQkbZ esa dqN dguk gS \ m0& fyf[kr nsaxs A 27. The way whereunder appellant answered during course of statement under Section 313 Cr.P.C. did not find favour. In Phula Singh v. State of Himachal Pradesh as reported in (2014) 4 SCC 9 , it has been held:- 9. Even in the statement under Section 313 Cr.P.C., the appellant answered every question saying “I do not know” or “it is incorrect” but when he was asked as to whether he wanted to say anything else, he answered as under:- “I am innocent and Prabhat Chand had lodged a false case against him, because he had encroached the land of Shri Vakil Chand as per his demarcation”. 10. We do not find any force in the submission advanced by Shri D.K. Garg that it is the prosecution which has to establish each and every fact and the accused has a right only to maintain silence. 11. The accused has a duty to furnish an explanation in his statement under Section 313 Cr.P.C. regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 Cr.P.C. is being recorded. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 Cr.P.C. is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. (Vide: Ramnaresh & Ors. v. State of Chhattisgarh, (2012) 4 SCC 257 ; Munish Mubar v. State of Haryana, (2012) 10 SCC 464 ; and Raj Kumar Singh v. State of Rajasthan, (2013) 5 SCC 722 ). 12. In the instant case, we fail to understand as under what circumstances the appellant could maintain complete silence particularly, in view of the fact that he did not deny his visit to the house of the complainant or that his shirt was found hanging on the peg in the wall and that his hands turned pink on being washed with sodium carbonate water. We do not find any force in the submission advanced by Shri D.K. Garg that it was not a fit case where the High Court ought to have reversed the well reasoned judgment of acquittal as it was based on evidence on record. 28. Now another circumstance which appellant himself borrowed during course of examination of PW-8, the Investigating Officer though not spoken by any of the PW, regarding their conduct. PW-8 in para 16 of his deposition (cross-examination) had said that he had not found any ailing girl at the house of Rajeshwar during his visit, rather he found the house locked. Abscondance is not at all fatal to defence but sometimes it proves like so. 29. In Sushil Sharma v. State (NCT of Delhi) reported in (2014) 4 SCC 317 , it has been held:- 65. The evidence on record clearly establishes that the appellant has not been able to prove the defence of alibi. Adverse inference needs to be drawn from this fact. False defence of alibi indeed forms a vital link in the chain of circumstances. It is also established by the prosecution that after the murder, the appellant made himself scarce. He stayed in the night of 2/7/1995 and 3/7/1995 at Gujarat Bhavan. He was on the run. Adverse inference needs to be drawn from this fact. False defence of alibi indeed forms a vital link in the chain of circumstances. It is also established by the prosecution that after the murder, the appellant made himself scarce. He stayed in the night of 2/7/1995 and 3/7/1995 at Gujarat Bhavan. He was on the run. He travelled from Delhi to Jaipur, from Jaipur to Bombay, from Bombay to Madras and from Madras to Bangalore where he was arrested on 10/7/1995. These facts are successfully established by oral and documentary evidence. Thus, the fact that the appellant was absconding is established beyond doubt. 66. In the ultimate analysis, therefore, we are of the opinion that the prosecution has successfully proved beyond reasonable doubt the following circumstances: 66.1 the appellant and the deceased were married and they were staying together in the said flat being Flat No.8/2A situated at Mandir Marg; 66.2 The relations between the appellant and the deceased were strained. The appellant was suspecting the fidelity of the deceased. The deceased wanted to make their marriage public which the appellant was not willing to do. There was, thus, a strong motive to murder; 66.3 The appellant and the deceased were last seen together in the evening of 2/7/1995 in the said flat; 66.4 on 2/7/1995, at about 11.00 p.m. there was a fire in Bagia Restaurant and the appellant was seen at around 10.15 p.m. at the Bagia Restaurant in his Maruti Car bearing No.DL-2CA-1872; 66.5 A2-Keshav, who was an employee of the Bagia Restaurant owned by the appellant, was seen shuffling the wood in the tandoor with a wooden stick and he was apprehended at the spot in the night intervening 2/7/1995 and 3/7/1995; 66.6 charred corpse found in the tandoor was identified to be that of the deceased; 66.7 On 4/7/1995, certain blood stained articles were recovered from the said flat where the appellant and the deceased were staying together; 66.8 On 4/7/1995, Car No.DL-2CA-1872 was found abandoned at Malcha Marg and the dicky of the car was found to contain dry blood. 66.9 On 5/7/1995, five empty cartridges, one lead bullet, a ply with bullet hole and an air pistol were recovered from the said flat where the appellant and the deceased were staying together; 66.10 From the evening of 2-3/7/1995, the appellant was on the run till he was arrested by the Bangalore Police at Bangalore on 10/07/1995. On 11/07/1995, the appellant was handed over to the Delhi Police and, inter alia, a .32 Arminius revolver owned by him was recovered by the police from his room at Pai Vihar Hotel at Bangalore. 30. Appreciation of evidence of hostile witness always remained matter of debate, however, it has been concluded in its conclusiveness by the Hon?ble Apex Court. In Paulmeli v. Tamil Nadu, Tr. Insp. Of Police (supra), it has been held as :- 16. This Court in Ramesh Harijan v. State of U.P., AIR 2012 SC 1979 : (2012 AIR SCW 2990) while dealing with the issue held: (para 18 of AIR, AIR SCW) “It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide: Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202 ; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 ; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848 ; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853 ). (1991 AIR SCW 2038)” 17. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996 SC 2766 : (1996 AIR SCW 3468) this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Sarvesh Narain Shukla v. Daroga Singh & Ors., AIR 2008 SC 320 ; Subbu Singh v. State by Public Prosecutor, (2009) 6 SCC 462 ; C. Muniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718; and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36 ): (AIR 2011 SC (cri) 426). Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. 31. Appreciation of evidence whenever case, rests upon circumstantial evidence, conduct of accused as well as plea at the end of accused under different dimensions and its mode of appreciation was subject matter in State of U.P. Vs. Ahok Kumar Srivastava as reported in AIR 1992 SC 840 whereunder it has been explained under para-9 which is as follows:- “9. This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise. 32. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise. 32. Now after scrutinizing, analyzing the evidence available on record, the following circumstances appear to be conclusively proved:- (a) Deceased was seen inside the house of appellant, (b) Since thereafter, she was not seen alive having her presence outside the house of appellant, (c) Her dead body was found inside the room, (d) Death was due to asphyxia, as a result of ante-mortem strangulation, apart from the presence of other injuries surfaced and on account of impact of hard and blunt substance, (e) As per evidence of Investigating Officer, during course of his visit at the place of occurrence, the house was found locked. 33. So, murder of deceased inside house of appellant is found conclusively proved. In that circumstance appellant is bound to explain the event whereunder deceased was done to death. In State of Rajasthan v. Thakur Singh, reported in 2014 Cr.L.J. 4047, it has been held 15. We find that the High Court has not at all considered the provisions of Section 106 of the Evidence Act, 1872. This section provides, inter alia, that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 16. Way back in Shambhu Nath Mehra v. State of Ajmer ( AIR 1956 SC 404 ) this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well-nigh impossible or extremely difficult for the prosecution to prove that fact. It was said: (AIR p. 406, para 11) “11. This [Section 101] 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. 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. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.” (emphasis supplied) 17. In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra [ (2006) 10 SCC 681 ] this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said: (SCC p. 694, para 22) “22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.” 18. Reliance was placed by this Court on Ganeshlal v. State of Maharashtra [ (1992) 3 SCC 106 ] in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife. 19. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife. 19. Similarly, in Dnyaneshwar v. State of Maharashtra [ (2007) 10 SCC 445 ] this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife. 20. In Jagdish v. State of M.P.[ (2009) 9 SCC 495 ] this Court observed as follows: (SCC p. 503, para 22) “22. … It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt.” 21. More recently, in Gian Chand v. State of Haryana [ (2013) 14 SCC 420 ] a large number of decisions of this Court were referred to and the interpretation given to Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. One of the decisions cited in Gian Chand is that of State of W.B. v. Mir Mohammad Omar [ (2000)8 SCC 382 ] which gives a rather telling example explaining the principle behind Section 106 of the Evidence Act in the following words: “During arguments we put a question to the learned Senior Counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. The learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise.” 22. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. The learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise.” 22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts. 23. Applying this principle to the facts of the case, since Dhapu Kunwar died an unnatural death in the room occupied by her and Thakur Singh, the cause of the unnatural death was known to Thakur Singh. There is no evidence that anybody else had entered their room or could have entered their room. Thakur Singh did not set up any case that he was not in their room or not in the vicinity of their room while the incident occurred nor did he set up any case that some other person entered the room and caused the unnatural death of his wife. The facts relevant to the cause of Dhapu Kunwar’s death being known only to Thakur Singh, yet he chose not to disclose them or to explain them. The principle laid down in Section 106 of the Evidence Act is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that Dhapu Kunwar was murdered by Thakur Singh. 24. It is not that Thakur Singh was obliged to prove his innocence or prove that he had not committed any offence. All that was required of Thakur Singh was to explain the unusual situation, namely, of the unnatural death of his wife in their room, but he made no attempt to do this. 34. Acquitted of co-accused will have adverse impact upon reliability of evidence as well as will cause dent in the prosecution case. In Yanob Sheikh @ Gagu v. State of West Bengal reported in (2013) 6 SCC 428 , after through discussion culminated under para-26:- 26. 34. Acquitted of co-accused will have adverse impact upon reliability of evidence as well as will cause dent in the prosecution case. In Yanob Sheikh @ Gagu v. State of West Bengal reported in (2013) 6 SCC 428 , after through discussion culminated under para-26:- 26. The cumulative effect of the above discussion is that the acquittal of a co-accused per se is not sufficient to result in acquittal of the other accused. The court has to screen the entire evidence and does not extend the threat of falsity to universal acquittal. The court must examine the entire prosecution evidence in its correct perspective before it can conclude the effect of acquittal of one accused on the other in the facts and circumstances of a given case. 35. For the reasons aforesaid, the instant appeal lacks merit and is dismissed, accordingly. Appellant who is under judicial custody will serve out the remaining part of sentence. V.N. Sinha, J. Having gone through the erudite opinion of my esteemed brother Trivedi, J., I express my inability to agree with the same and would like to render my own opinion in the matter. 2. Having discussed the prosecution case, as set out in the written report of the informant, evidence adduced in Court by the prosecution witnesses including the statement of the appellant recorded under Section 313 Cr.P.C. Trivedi, J. held in Paragraph 32 of his judgment that in the instant case prosecution has conclusively proved the following circumstances : (a) Deceased was seen inside the house of the appellant, (b) Was not seen alive thereafter, (c) Her dead body was found inside room, (d) Death was due to asphyxia, as a result of ante-mortem strangulation, other injuries were caused by impact of hard and blunt substance, (e) As per evidence of Investigating Officer, during course of his visit at the place of occurrence, the house was found locked. 3. In Paragraph 33 Trivedi, J. further held that appellant being head of his family failed to explain the circumstances enumerated in Paragraph 32 which he was legally required to have explained in terms of Section 106 of the Indian Evidence Act, 1872 and further held that the finding recorded by the Trial Judge is just, proper, does not merit any interference and dismissed the appeal. In Paragraph 33 Trivedi, J. further held that murder of deceased inside the house of appellant is found conclusively proved. In the circumstances, appellant is bound to explain as to how the deceased was done to death in his house and further referred to the case of State of Rajasthan v. Thakur Singh (supra) Paragraphs 15 to 24. In Paragraph 34 Trivedi J. placing reliance over the judgment of the Supreme Court in the case of Yanob Sheikh @ Gagu v. State of West Bengal (supra) Paragraph 26 held that acquittal of co-accused Chandan Devi, wife of Late Thakur Rai, per se, is not sufficient to result in acquittal of the appellant. The Court must examine the entire prosecution evidence in its correct perspective before it can conclude the effect of acquittal of one accused on the other in the facts and circumstances of a given case. In the light of the aforesaid findings recorded in Paragraphs 32 to 34 Trivedi, J. proceeded to dismiss the appeal in Paragraph 35 of his judgment. 4. It appears, in the instant case, besides the appellant, Chandan Devi wife of Late Thakur Rai and Kanchan Kumari daughter of the appellant were made accused in the First Information Report drawn on the basis of the written report of the informant Bachchi Devi (P.W. 5), wife of Asarfi Mahto, resident of Village Morsandi submitted to the Officer-in-Charge, Motipur Police Station on 01.12.2012 at 3.00 P.M. asserting therein that on 01.12.2012 at 10.00 A.M. her daughter Soni Kumari aged 14 years had taken the goats to the outer area of the village to feed them. Keshaw (sweet potato) crop was grown in the field of the appellant, which her daughter was uprooting out of greed. Meanwhile, Kanchan Kumari, aged 18 years, daughter of the appellant and Chandan Devi, wife of Late Thakur Rai, both residents of Village Morsandi arrived, apprehended, assaulted her as also took her to their house. Appellant also not only assaulted Soni Kumari but also hanged her with a ridgepole attached to the roof with a rope and she died. In the written report, it is further stated that the informant along with others, while looking for her daughter, came to the house of the appellant, found her dead body lying on the floor in the room east of the verandah facing west. In the written report, it is further stated that the informant along with others, while looking for her daughter, came to the house of the appellant, found her dead body lying on the floor in the room east of the verandah facing west. It is further asserted in the written report that the occurrence was seen by co-villagers Santosh Mahto, Sanjay Mahto, Dilip Kumar (all not examined), Harendra Mahto (P.W. 1) etc. It is also stated in the written report that informant and others also saw a rope hanging from the ridgepole and that the accused persons are absconding from their house. In the written report informant further claimed that her daughter Soni Kumari was first assaulted by the three accused persons, who also hanged her with the ridgepole causing her death. Besides the informant, Harendra Mahto (P.W. 1) and Sanjay Mahto (not examined) put their left thumb impression over the written report. Santosh, Dilip Kumar (both not examined) also endorsed the contents of the written report by putting their signature as witness. 5. In the light of the aforesaid written report Officer-in-Charge, Motipur Police Station conducted inquest on the dead body of Soni Kumari on 01.12.2012 at 16.00 hours in the eastern room of the appellant’s house in presence of Harendra Mahto (P.W. 1), Rajendra Mahto (not examined) and found black mark around the neck of the deceased. In the same afternoon at 16.30 hours Officer-in-Charge also seized the incriminating materials, namely, rush (Munze) rope of about 3 ft. length, broken bangle of chocolate colour, blue skirt (school uniform), hairclip one piece from the same room in which he conducted inquest over the dead body of the deceased in presence of Santosh Mahto, Sanjay Mahto (both not examined). After conducting the inquest proceeding, seizure of incriminating materials from the room Officer-in-Charge Nawal Kishore Rai returned to the Police Station, registered Motipur P.S. Case No. 268/12 dated 01.12.2012 at 21.30 hours for the offences under Sections 302/34 of the Penal Code entrusting further investigation of the case to S.I. Ashok Kumar Das. Perusal of Column No. 7 of the First Information Report indicates that Kanchan Kumari, daughter of appellant, Chandan Devi, wife of Late Thakur Rai and the appellant are the three accused of the case. Perusal of Column No. 7 of the First Information Report indicates that Kanchan Kumari, daughter of appellant, Chandan Devi, wife of Late Thakur Rai and the appellant are the three accused of the case. Column No. 15 of the First Information Report, whereunder Officer-in-Charge is required to mention the date, time of dispatch of the First Information Report from Police Station to Court, is blank. The First Information Report, however, has been received in the Court of S.D.J.M. (West), Muzaffarpur on 03.12.2012. Post mortem of the deceased was conducted on 02.12.2012 at 11.30 A.M. by P.W. 7 Dr. Bipin Kumar vide post mortem report (Exhibit-1). The Investigating Officer in the light of the contents of the inquest report, seizure list, post mortem report and after recording the statement of the prosecution witnesses found the case true against appellant Rajeshwar Rai, Chandan Devi, wife of Late Thakur Rai and submitted charge-sheet No. 24/13 dated 26.02.2013 against them but kept the investigation pending against Kanchan Kumari. In the light of the charge-sheet, cognizance was taken and after supply of police paper case was committed to the Court of Sessions. Trial Court framed charge under Sections 302/34 of the Penal Code against the appellant and Chandan Devi under order dated 15.01.2014 as also explained the same to the accused persons in Hindi to which both pleaded not guilty and claimed to be tried. 6. In support of the charge prosecution examined as many as 9 witnesses. P.W. 1 Harendra Mahto is the uncle of the deceased, who has not only put his thumb impression on the written report as a witness, but is also a witness of the inquest proceeding. He, however, has not supported the prosecution case and has been declared hostile. 7. P.W. 2 Jhingan Das has stated in Paragraph 1 of his evidence that the occurrence took place about 1 year and 2 months earlier. Soni Kumari suffered from mental retardation. In the same paragraph P.W. 2 further stated that Soni Kumari had gone in the court-yard of the appellant when there was none in his house. In the same paragraph P.W. 2 further stated that he is not aware as to what happened in the court-yard after Soni Kumari went there but she died in the house of the appellant. On alarm raised by children P.W. 2 also went in the court-yard. In the same paragraph P.W. 2 further stated that he is not aware as to what happened in the court-yard after Soni Kumari went there but she died in the house of the appellant. On alarm raised by children P.W. 2 also went in the court-yard. P.W. 2 further asserted that on the date of occurrence Soni Kumari had not dug sweet potato. P.W. 2 also stated that Officer-in-Charge never recorded his statement. In cross-examination P.W. 2 stated that he had not seen the occurrence. 8. P.W. 3 Ram Pravesh Ram stated in his evidence that the deceased was his neighbour and occurrence took place about one year earlier. P.W. 3 also stated that deceased suffered mental retardation and that witness learnt that deceased committed suicide. P.W. 3 categorically asserted in his evidence that neither the appellant nor the two other accused persons confined the deceased in their house nor committed her murder. P.W. 3 further stated that he never recorded his police statement and was declared hostile. In cross-examination P.W. 3 further confirmed that he learnt about the occurrence and had not seen the same. 9. P.W. 4 Asarfi Mahto is the husband of the informant, father of the deceased and was at Delhi on the date of occurrence. He rushed to the place of occurrence village after being telephonically informed about the occurrence and learnt from his wife that deceased Soni went to the house of appellant but he could not get any clue about the cause of her death. P.W. 4 also stated that he did not make any police statement and was declared hostile. P.W. 4 further stated that on the date of occurrence the deceased quarrelled with her mother. In Paragraph 5 of his evidence P.W. 4 stated that his daughter was under employment of the accused persons and used to regularly visit their house. In Paragraph 6 P.W. 4 further stated that he is unaware about there being any strain in the relationship between his deceased daughter and the accused persons. 10. P.W. 5 is the informant and mother of the deceased. She stated in her evidence that the occurrence took place one year earlier when she had gone to serve as a wage earner and returned at 4.00 P.M. Her daughter was lying dead in the house of the appellant. 10. P.W. 5 is the informant and mother of the deceased. She stated in her evidence that the occurrence took place one year earlier when she had gone to serve as a wage earner and returned at 4.00 P.M. Her daughter was lying dead in the house of the appellant. P.W. 5 also went to the house of the appellant and found dead body of her daughter lying on the door of appellant but had not seen the assailant. P.W. 5, however, admitted that she filed case before the police and was declared hostile. In cross-examination P.W. 5 stated that her daughter at times suffered mental retardation and used to loiter but she used to explain and guide her. In Paragraph 4 P.W. 5 stated that she had gone to dig potato in the field of land-holders (Babus). In the same paragraph P.W. 5 further stated that she also served as wage-earner in the field of appellant as also visited his house along with her daughter. In Paragraph 6 P.W. 5 stated that on the date of occurrence accused Kanchan Kumari had gone to Motipur High School, which is at a distance of 7-8 kilometers from the village where she studied. In Paragraph 7 P.W. 5 stated that on the date of occurrence she found the appellant present in his field for the whole day. In Paragraph 8 P.W. 5 stated that she is unaware as to how her daughter suffered death and that she instituted the case at the behest of others. 11. P.W. 6 Asarfi Thakur also did not support the prosecution case and has been declared hostile. 12. P.W. 7 Dr. Bipin Kumar conducted post mortem, found ligature mark below thyroid cartilage completely encircling the neck of the deceased. He also found abrasion over back of chest of the deceased and opined that deceased died due to asphyxia as a result of ante-mortem strangulation and further stated in Paragraph 6 of his evidence that type of injury found on the person of the deceased can be caused by assault. 13. P.W. 8 Ashok Kumar Das is the Investigating Officer of the case. 13. P.W. 8 Ashok Kumar Das is the Investigating Officer of the case. He stated in his evidence that on 01.12.2012 he was posted in Motipur Police Station, Officer-in-Charge whereof was Sub-Inspector Nawal Kishore Rai, who registered the First Information Report of the present case on the basis of the written report of informant Bachchi Devi and proved the same as Ext. 2. In Paragraph 3 P.W. 8 proved the endorsement made over the written report as Ext. 3. In Paragraph 4 P.W. 8 stated that the investigation of the case was entrusted to him, whereafter he inspected the place of occurrence and then prepared the inquest report. In the same paragraph P.W. 8 described the place of occurrence as a brick-built asbestos roof house of the appellant in village Morsandi situate on the eastern side of the village road having northern frontage. The dead body of the deceased was found lying on the ground in the eastern room of the said house having western frontage. In the same paragraph P.W. 8 also gave the boundary of the place of occurrence house. In Paragraph 5 P.W. 8 stated that he prepared the inquest report of the deceased Soni Kumari by carbon process over which he also obtained thumb impression of two independent witnesses, namely, Harendra Mahto (P.W. 1) and Rajendra Mahto (not examined). In the same paragraph P.W. 5 stated that the inquest report is in the handwriting, signature of Officer-in-Charge and admitted in evidence as Ext. 4. In Paragraph 6 P.W. 8 stated that after inspecting the place of occurrence and preparing the inquest report he recorded further statement of the informant and the statement of Harendra Mahto (P.W. 1), Santosh Mahto, Gita Devi, Sanjay Mahto (all not examined), Asarfi Mahto (P.W. 4) and independent witnesses Ram Pravesh Ram (not examined), Jhingan Das (P.W. 2), Asarfi Thakur (P.W. 6), Binod Rai (not examined) who supported the prosecution case. In Paragraph 7 P.W. 8 stated that he received the post mortem report, supervision note of Sub-Divisional Police Officer, completed the investigation, finding the case true against the appellant and Chandan Devi submitted charge-sheet for the offences under Sections 302/34 of the Penal Code keeping the investigation pending against Kanchan Kumari. In Paragraph 8 P.W. 8 stated that during the entire investigation none of the prosecution witness supported the prosecution case as an eye-witness of the occurrence. In Paragraph 8 P.W. 8 stated that during the entire investigation none of the prosecution witness supported the prosecution case as an eye-witness of the occurrence. In Paragraph 9 P.W. 8 stated that he had not found blood oozing out from the eyes, nose and ears of the deceased. P.W. 8 also stated in the same paragraph that he did not notice tongue of the deceased protruding. In Paragraph 10 P.W. 8 again reiterated that place of occurrence is the asbestos roof house of the appellant, room height whereof P.W. 8 has neither noted in the case diary nor does he remember the same. In the same paragraph P.W. 8 further stated that he has not mentioned in the case diary as to whether any wooden bed (Chaunki) was available in the place of occurrence room. In Paragraph 11 P.W. 8 stated that he has not mentioned in the case diary that at the time of inspection of the place of occurrence belongings kept in the room were in organized/ disorganized manner. In Paragraph 12 P.W. 8 stated that there was no rope found near the dead body of the deceased but the same was found dangling with the ridgepole. In the same paragraph P.W. 8 stated that he has not mentioned in the case diary the number of ridgepole fixed with the roof. In the same paragraph P.W. 8 further stated that he is not in a position to indicate whether ridgepole fixed with roof was wooden or made of iron. The length of the rope found was about 3 ft. In Paragraph 13 P.W. 8 stated that he did not enquire about the mental condition of the deceased. In Paragraph 14 P.W. 8 stated that the house of the deceased was on the western side of the road and the house of the accused was on the eastern side. In Paragraph 16 P.W. 8 stated that he had not seen any ailing girl in the house of the appellant, which was found locked at the time of his visit. In Paragraph 17 P.W. 8 declined the suggestion that the investigation conducted by him is defective. 14. In Paragraph 16 P.W. 8 stated that he had not seen any ailing girl in the house of the appellant, which was found locked at the time of his visit. In Paragraph 17 P.W. 8 declined the suggestion that the investigation conducted by him is defective. 14. P.W. 9 Gita Devi deposed in his evidence that the occurrence took place about 1½ years earlier when she had gone to harvest paddy, returned at about 2.00 P.M., found a mob collected in village, went near the mob and found Soni Kumari lying dead and that she is not aware as to how she died. P.W. 9 was also declared hostile. She confirmed in cross-examination that she had not seen the occurrence. 15. Before recording the findings in Paragraphs 32, 33 of his judgment Trivedi, J. having appraised the prosecution case, evidence held in Paragraph 20 that none of the prosecution witnesses claimed themselves to be an eye-witness of the occurrence but P.W. 2 stated about the presence of the deceased inside the house of the appellant and as he has not been cross-examined on behalf of the appellant to discredit him about the presence of the deceased inside the house and her dead body being found in the eastern room of the house of the appellant, appellant being the head of the family was obliged to explain the presence of dead body of Soni Kumari in the eastern room of his house. In this connection, I would like to refer to the evidence of P.W. 2 Paragraph 1 in which P.W. 2 stated that the occurrence took place 1 year 2 months earlier. Soni Kumari suffered mental retardation. He saw Soni Kumari going in the court-yard of the appellant, there was none in his house. In the same paragraph P.W. 2 further stated that he is not aware as to what happened in the court-yard after Soni Kumari went inside the court-yard. According to P.W. 2, Soni Kumari died in the house of the appellant. On alarm raised by children P.W. 2 also went in the court-yard of the appellant. It is further stated by P.W. 2 that he has no clue about the manner in which Soni Kumari suffered death inside the court-yard/ eastern room of the appellant’s house though hearing alarm raised by children he (P.W. 2) also came to the eastern room of appellant’s house. It is further stated by P.W. 2 that he has no clue about the manner in which Soni Kumari suffered death inside the court-yard/ eastern room of the appellant’s house though hearing alarm raised by children he (P.W. 2) also came to the eastern room of appellant’s house. From the aforesaid evidence of P.W. 2, in my opinion, it is obvious that when Soni Kumari went inside the court-yard of the appellant, appellant and other members of his family including acquitted accused were not present in the house. Appellant being not present in his house at the time when Soni Kumari entered the court-yard, in my opinion, he is also not obliged to explain the circumstances in which Soni Kumari suffered death in his court-yard/ eastern room. 16. In the light of Section 101 of the Evidence Act burden of proof lies on the prosecution to prove its case. Section 106 of the Evidence Act is not intended to relieve the prosecution of its duty to prove the case. Section 106 is designed to meet certain exceptional cases in which it would be impossible or at any rate 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. Construction of Section 106 clearly indicates that stress is on the word “especially” within the knowledge of the accused. It means facts that are pre-eminently or exceptionally within the knowledge of the accused is required to be disclosed by him. In the case in hand, from the evidence of P.W. 2 itself, it is evident that when Soni Kumari entered the court-yard of the appellant, appellant and other members of his family including acquitted accused were not present in the house, which also appears to be corroborated from the contents of the written report and the evidence of the Investigating Officer (P.W. 8) Paragraph 16. In the circumstances, inability of the appellant to explain the presence of the dead body of Soni Kumari in the eastern room of his house while answering the questions under Section 313 Cr.P.C. cannot be used against him as under Section 313 Cr.P.C. accused is required to explain the incriminating materials/ circumstances proved against him. In the circumstances, inability of the appellant to explain the presence of the dead body of Soni Kumari in the eastern room of his house while answering the questions under Section 313 Cr.P.C. cannot be used against him as under Section 313 Cr.P.C. accused is required to explain the incriminating materials/ circumstances proved against him. In the instant case, the factum of presence of the appellant, his family members in the house at the time of entry of Soni Kumari into the court-yard of the appellant’s house having not been proved, in my opinion, he was not at all required to explain the presence of the dead body in the outer eastern room which was assessable from outside. 17. In the case of Phula Singh Vs. State of Himachal Pradesh (supra) Supreme Court held in Paragraph 11 with reference to the facts disclosed in Paragraph 8 that the appellant before the Supreme Court having not denied his visit to the house of the complainant where he is said to have received Rs. 1,000/- from the complainant, he was required to have furnished explanation in respect of recovery of Rs. 1,000/- from the pocket of his pant and also to explain as to how did his fingers turned pink on being washed with Sodium Carbonate Solution. The reported case, in my opinion, has no application to the facts of the present case. 18. In the facts and circumstances of the present case, I am also unable to persuade myself to place reliance on the judgment of the Supreme Court in the case of Sushil Sharma Vs. State (NCT of Delhi) (supra), as in the said case Sushil Sharma is found to have committed murder of his wife inside his flat where the two resided together and then burnt her body in the oven of his hotel. The identity of the dead body as the wife of the appellant could be established with reference to forensic evidence obtained from her parents and matching with the sample taken from the dead body recovered from the oven of appellant’s restaurant. The identity of the dead body as the wife of the appellant could be established with reference to forensic evidence obtained from her parents and matching with the sample taken from the dead body recovered from the oven of appellant’s restaurant. Failure of the appellant to explain the incriminating circumstances found in his flat and the recovery of the dead body of his wife from the oven of his restaurant led to his conviction, which was further corroborated by his failure to prove the defence of alibi, as such, in my opinion, the facts and the law laid down in the case of Sushil Sharma (supra) has absolutely no application to the case in hand. 19. From the facts in the case of State of Rajasthan Vs. Thakur Singh (supra) it appears that Dhapu Kunwar died an unnatural death in the room occupied by her and respondent Thakur Singh her husband. The cause of the unnatural death of Dhapu Kunwar was known to her husband. There is no evidence that anybody else had come to the room. Thakur Singh did not set up any case that he was neither in the room nor in its vicinity when the incident occurred nor did he set up any case that some other person entered the room and caused unnatural death of his wife. The facts relevant to the cause of death of Dhapu Kunwar being known only to Thakur Singh, yet he chose not to disclose them or to explain them and in that circumstance Supreme Court relying on Section 106 of the Evidence Act held that there is very strong presumption that Dhapu Kunwar was killed by Thakur Singh. In the case in hand, from the evidence of P.W. 2 itself, it is evident that when Soni Kumari came inside the court-yard of the appellant there was none in his house, as such, it was not for the appellant to explain the circumstances in which she met with an unnatural death in the court-yard and her dead body was found in the room east of the verandah facing west, which was assessable from outside. 20. 20. The law laid down in the case of Yanob Sheikh @ Gagu v. State of West Bengal (supra) that the Court must examine the entire prosecution evidence in its correct perspective before proceeding to conclude that the effect of acquittal of one accused will have no bearing while considering the appeal of the other convict, is also not applicable to the facts of the present case, as appellant and the acquitted accused Chandan Devi are the inmates of the same house in which Soni Kumari entered when as per the evidence of P.W. 2 none of the inmates of the house were present and Soni Kumari suffered unnatural death, as such, the prosecution case and the evidence led against both the accused being the same, the result of the appeal filed by the appellant is required to be guided by the acquittal of Chandan Devi, which has not been challenged by the State and has become final. 21. In view of my discussion above, appellant deserves grant of benefit of doubt. Impugned judgment of conviction/ order of sentence is set aside with further direction that appellant be released forthwith, if not required in any other case.