JUDGMENT : M.M. Banerjee, J. 1. The appellant along with his parents faced Sessions Trial No. 96/99 in the Court of the Ld. Additional District & Sessions Judge, Fast Tract (1st Court), Rampurhat in the district of Birbhum to answer charges under Section 498A/34 and under Section 302/34 of the I.P.C. 2. The prosecution case, as can be seen from the evidence of the witnesses, is that Hasiba Khatoon, daughter of P.W.1 was married to the appellant. She gave birth to two daughters and the accused persons perpetrated physical torture upon her and also demanded money from the father of the deceased through her. About six years after the marriage, one day the father of the petitioner was informed by some villagers that his daughter was murdered. 3. With a view to proving its case the prosecution on its behalf examined 11 witnesses. The Ld. Trial Judge after taking into consideration and discussing the evidence on record in terms of the impugned judgment and order was pleased to acquit the parents of the appellant (other two co-accused) of both the charges but was pleased to find the appellant guilty on both the counts and convicted him accordingly. The appellant was sentenced to suffer imprisonment for life for the offence punishable under Section 302 I.P.C. and rigorous imprisonment for 3 (three) years for the offence punishable under Section 498A I.P.C. with fine of Rs.1000 (one thousand) on each count and in default to suffer simple imprisonment for 2 (two) months on each count. It was directed that both the sentences shall run concurrently. 4. The only point for consideration is whether the judgment and order of conviction and sentence as passed by the Ld. Trial Judge can be sustained. 5. It is found that P.W.1 Nokir Sk. is the father of the deceased Hasiba Khatoon. It is in his evidence that Hasiba was murdered about 9 years ago and her marriage with the appellant had taken place 15 years ago. He has claimed that after Hasiba gave birth to two female children the accused persons started torturing her. Receiving the information about the death of his daughter he went to the house of the appellant. His further evidence is that Rehena, his daughter’s daughter told him that the appellant had killed her mother by throttling. He proved his signature in the inquest report as also in the written complaint. 6. Receiving the information about the death of his daughter he went to the house of the appellant. His further evidence is that Rehena, his daughter’s daughter told him that the appellant had killed her mother by throttling. He proved his signature in the inquest report as also in the written complaint. 6. It further appears from the above that the daughter of the deceased appears to be an eye witness of the incident of murder and, therefore, it is to be seen what she has stated in her evidence. 7. Rehena has been examined on behalf of the prosecution as P.W.2. It is found from her evidence that her mother was killed by her father by throttling. It appears from the cross-examination that at the time of giving evidence in Court she was only 11/12 years of age and since the death of her mother she has been residing at the house of P.W.l. So at the time of incident she was only 3/3 ½ years of age. She, however, has denied the defence suggestion to have deposed falsely being tutored. 8. The question is whether the evidence of P.W.2, the daughter of the deceased who was at the time of occurrence only 3/3 ½ years of age could be relied upon to find the appellant guilty of murder. 9. It was argued by the Ld. Advocate appearing for the appellant that Ld. Trial Judge while convicting the appellant quite rightly was pleased to hold that it is very difficult to accept that this P.W.2 keenly observed her mother’s killing. The Ld. Counsel appearing for the State has also not repudiated the argument of the Ld. Advocate appearing for the appellant, rather he also conceded that it is unsafe to rely on the testimony of the child to find the appellant guilty of the offence under Section 302 I.P.C. The Ld. Counsel for the State, however, argued that the most glaring feature in this case is the post mortem report and the evidence of the autopsy surgeon namely, Dr. Manabbrata Majumder (P.W.9). Counsel for the State, however, argued that the most glaring feature in this case is the post mortem report and the evidence of the autopsy surgeon namely, Dr. Manabbrata Majumder (P.W.9). It was argued that it is in the evidence of P.W.9 that on examination of the dead body he first of all found finger marks on both sides of the neck but on dissection no fracture of Hyoid bone was seen and significantly, ecchymosed areas were seen on the front of the chest wall and lower part of the left side chest wall with fracture of left 9th and 10th ribs in the mid axillary line with puncture of spleen with plenty of blood and blood clots in the peritoneal cavity. The Ld. Counsel also argued that it is in the evidence of the autopsy surgeon that in his opinion the cause of death was due to shock and haemorrhage from the injuries noted in the post mortem report which was ante mortem and homicidal in nature. It was argued that the appellant being the husband of the deceased did not come forward with any explanation as to how the deceased died and from the evidence of P.W.9 there could be no doubt that the deceased died a homicidal death at the hands of the appellant and in accordance with Section 106 of Indian Evidence Act, the burden as to how the deceased died was within the special knowledge of the appellant. The Ld. Counsel for the State argued that since the appellant failed to discharge such burden the Ld. Trial Judge very rightly found the appellant guilty of the offence for committing the murder of his wife and the judgment and order of conviction and sentence do not warrant any interference by this Court of appeal. 10. The Ld. Advocate for the appellant argued that in cross-examination this P.W.9 categorically admitted that there is no case of throttling as the post mortem report reveals. He further argued that P.W.9 also admitted in cross-examination that the fracture as has been found in the instant case might be caused if one falls upon hard substance and it might be caused by rolling upon hard substance. He further argued that P.W.9 also admitted in cross-examination that the fracture as has been found in the instant case might be caused if one falls upon hard substance and it might be caused by rolling upon hard substance. It was argued that the defence put a suggestion to P.W.3 Halima Bibi, mother of the deceased in her cross-examination that her daughter died by sustaining injuries while coming down from the upstairs, albeit denied by her but when the autopsy surgeon (P.W.9) in his cross-examination has admitted that the injuries could have been caused due to fall and rolling on hard substance that creates a reasonable doubt particularly when the case of throttling has been ruled out by P.W.9 himself. The Ld. Advocate further argued so far the other witnesses are concerned none is of any help to the prosecution and the Ld. Trial Judge ought to have found the accused not guilty of the offence punishable under Section 302 I.P.C. 11. After going through the impugned judgment we find that the Ld. Trial Judge although not expressly referred to Section 106 of the Evidence Act but came to observe that there is no explanation from the side of the defence as to how the mark of throttling was there in the dead body of the deceased as pointed out by the autopsy surgeon in the post mortem report. The Ld. Trial Judge has also observed that there is no explanation given on the part of the husband what prevented him from coming home from the place where he was working in a grave situation when the villagers rushed to his house hearing the news of the incident. The Ld. Trial Judge, therefore, came to the finding that the incriminating circumstances led only to the hypothesis of the guilt of the appellant and excluded every possibility of his innocence. 12. The question therefore, arises from the above as to whether Section 106 of the Evidence Act has to be interpreted in the way so as to demand from the accused explanation and circumstances and more so defence evidence showing his innocence. In this context we must quote what the Apex Court stated in the case of Shambhunath Mehra Vs. 12. The question therefore, arises from the above as to whether Section 106 of the Evidence Act has to be interpreted in the way so as to demand from the accused explanation and circumstances and more so defence evidence showing his innocence. In this context we must quote what the Apex Court stated in the case of Shambhunath Mehra Vs. State of Ajmer reported in A.I.R. 1956 S.C. 404 which is as follows: i) 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 case 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. ii) The word “especially” stresses that, it means facts that are preeminently 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 him whether he did or did not. 13. So it is incumbent upon us to examine whether it was at all impossible for the prosecution to establish its case by adducing cogent, credible and convincing evidence. In this context we must observe that P.W.1 Nokir Sk. who is the father of the deceased- housewife and also the de facto complainant of the case, in his evidence has claimed that one Furkuni, a relation of the father of his son-in-law (the appellant) reported him that there was a quarrel at their house between his daughter and accused persons since morning on the date of the alleged incident and she also reported him that his son-in-law , named Karim Sk. and his parents caused physical torture upon his daughter and subsequently in course of quarrel Karim’s parents provoked to commit murder of his daughter and he did so by throttling her at about 9 a.m. on that day. This P.W.1 has also claimed in his evidence that Rehena Khatoon his daughter’s daughter (P.W.2) also reported him that her father killed her mother by throttling in the upstairs. 14. This P.W.1 has also claimed in his evidence that Rehena Khatoon his daughter’s daughter (P.W.2) also reported him that her father killed her mother by throttling in the upstairs. 14. We find that the prosecution first of all did not examine this lady named Furkuni and no explanation is forthcoming for her non-examination. It appears from the cross-examination of this P.W.1 as also from the cross-examination of the investigating officer, S.I. Debnarayan Dutta (P.W.11) that P.W.1 did not state before him about all such allegation from Furkuni, so the evidence of P.W.1 in that regard not being corroborated by the lady herself (Furkuni) and not consistent with his earlier statement recorded under Section 161 Cr.P.C. cannot be relied upon. It is also in the cross-examination of P.W.11 that this P.W. 1 did not state to him that his grand-daughter Rehena Khatoon had disclosed the factum of throttling of her mother by accused Karim Sk. to him. 15. So, for the reasons as indicated hereinabove we are unable to rely on the evidence of P.W.1 which appeared to be incriminating circumstances to the Ld. Trial Judge finding the accused guilty of committing murder. 16. We have already stated hereinabove that we are in agreement with Ld. Trial Judge that it would be unsafe to rely on the evidence of P.W.2 who was a child of 3/3 ½ years of age at the time of the alleged occurrence. 17. P.W.3, Halima Bibi is the mother of the deceased housewife. She is a hearsay witness. P.W.4 Budhu Sk. and P.W.5 Salim Sk. are also hearsay witnesses. 18. P.W.6 Sukur Ali in his evidence has claimed to have heard from Furkuni that there was quarrel between Hasiba (deceased housewife) and the accused persons and subsequently her dead body was found but this piece of testimony is not admissible for non-examination of said Furkuni. Moreover, it also appears from his cross-examination that he made such claim for the first time in Court without disclosing the same before the investigating officer of the case. 19. P.W.7 Subodh Kumar Nayak held inquest over the dead body of the deceased; P.W.8 Pinaki Ranjan Jha in his evidence although has stated that he recorded the statement of one Rehena Khatoon, a child witness but the statement so recorded in original could not be shown to him and it could not be marked as exhibit. 19. P.W.7 Subodh Kumar Nayak held inquest over the dead body of the deceased; P.W.8 Pinaki Ranjan Jha in his evidence although has stated that he recorded the statement of one Rehena Khatoon, a child witness but the statement so recorded in original could not be shown to him and it could not be marked as exhibit. As already stated earlier P.W. 9 Manabbrata Mazumder held post mortem over the dead body. He in cross-examination admitted that the fracture as was found in the instant case might be caused if one falls upon hard substance and it might be caused by rolling upon hard substance and that there is no case of throttling as the post mortem report reveals. P.W. 10 is a law clerk who drafted the F.I.R. and P.W. 11 is the investigating officer of the case. 20. So in the line of the observation of the Supreme Court in the decision reported in A.I.R. 1956 S.C. 404 we find that in the instant case the prosecution cannot be relieved of its burden to prove its case, or in other words, the charges against the accused/appellant that he committed murder of his wife and further that he also had inflicted torture upon her over demand of dowry. 21. The prosecution cannot be permitted to believe the Court in the hypothesis that simply because the defence failed to adduce any explanation as to the cause of injuries found on the person of the deceased, it is absolved of its responsibility to discharge the burden of proving its own case. Here in the instant case the prosecution did not examine the lady named Furkuni who, from the evidence on record we find, was living in the same house. Moreover, the standard of proof on the part of an accused in-so-far as it relates to creating reasonable doubt so as to absolve him of the criminal liability is not as strict as it is on the prosecution to prove the guilt of an accused beyond reasonable doubt. Moreover, the standard of proof on the part of an accused in-so-far as it relates to creating reasonable doubt so as to absolve him of the criminal liability is not as strict as it is on the prosecution to prove the guilt of an accused beyond reasonable doubt. In the instant case from the cross-examination of the autopsy surgeon there is every room for doubt that the deceased died a homicidal death because as already stated above, the autopsy surgeon P.W.9 in the concluding line of his cross-examination has stated that the fracture as found in the instant case could be caused if one falls upon hard substance and it might be caused by rolling upon hard substance and he has excluded the case of throttling. 22. On close scrutiny of the evidence on record we do not also find that the prosecution has been able to prove the charge under Section 498 A I.P.C. against the accused/appellant. 23. In the result, we find that there is merit in this appeal and the judgment and order of conviction and sentence as passed by the Ld. Trial Judge cannot be sustained and are liable to be set aside. The appeal is, therefore, allowed. The impugned judgment and order of conviction and sentence are hereby set aside. The accused/appellant is acquitted of the charges under Section 302/498A I.P.C. and be set at liberty.