JUDGMENT Shashi Kant, J. – This Criminal Appeal (Jail) under Section 374(2) Criminal Procedure Code, 1973 (in short 'Cr.P.C.') has been filed by Ibrahim alias Pappu-accused appellant against the judgment and order dated 06.10.2010, passed by learned Special Additional Sessions Judge, CBI (Ayodhya Prakaran), Lucknow in Sessions Trial No. 946 of 2008 - State v. Ibrahim alias Pappu, whereby the accused appellant has been convicted under Section 302 of Indian Penal Code, 1860 (in short 'I.P.C.') and has been sentenced for life imprisonment and fine of Rs.5000/-. In default of payment of fine he was also directed to serve one year additional rigorous imprisonment. 2. The prosecution case in brief is that: 2.1 A first information report-Exhibit 'ka-2' had been lodged by the complainant/PW-1, Mohd. Saleem S/o Mohd. Habib (hereinafter referred as 'first informant') on 05.03.2008 at about 9.45 A.M. at Police Station-Wazirganj, District-Lucknow, stating therein that marriage of his daughter Rizwana Bano was solemnized about 11 years ago with accused-appellant Ibrahim alias Pappu R/o Lal Bagh, Lucknow and out of the said wedlock four children were born. His son-in-law-Ibrahim was living with his family as tenant in the house of Mohd. Siddique, situated at Mohalla-Sohan Nagar, Rakabganj, Lucknow. For the past 5 to 6 months he was not doing any work and was beating and threatening to his daughter. In the morning of 05.03.2008, Ibrahim alias Pappu killed his daughter, attacking her by 'hammer'. After receiving above information from PW-5, Abdul Aziz, he reached at spot and saw that dead body of his daughter was lying on 'Takhat'. 2.2 Above first information report was registered as Case Crime No. 87 of 2008 under Section 302 I.P.C. at Police Station-Wazirganj, District-Lucknow, an entry for registration of the case was made in the General Diary, a copy whereof is Exhibit 'ka-3'. 2.3 Investigation of the case was taken over by PW-7, SHO Vinod Singh Sirohi, who reached on the spot, recorded statement of the first informant and prepared site plan-Exhibit 'ka-9'. On the instructions of PW-7, PW-6 Sub Inspector Raj Bahadur Dwivedi, had prepared inquest report-Exhibit 'ka-5' and papers related to dead body i.e. challan nash, photo nash and sample seal (Exhibits - 'ka-6', 'ka-7' and 'ka-8' respectively). On the instructions of PW-7, PW-6 Sub Inspector Raj Bahadur Dwivedi, had prepared inquest report-Exhibit 'ka-5' and papers related to dead body i.e. challan nash, photo nash and sample seal (Exhibits - 'ka-6', 'ka-7' and 'ka-8' respectively). On the instructions of PW-7, Sub Inspector Indrajeet Singh Chauhan had recovered blood stained two pillow covers, one piece of bed sheet, took sample of plain and blood stained soil and recovered the hammer (material Exhibits - 'ka-10', 'ka-11' and 'ka-12' respectively). 2.4 The Investigating Officer PW-7, had also recorded statement of other witnesses, arrested the accused and recorded his statement, sent the recovered articles for chemical examination, obtained report of chemical examination and after completion of investigation filed charge sheet (Exhibit - 'ka-15') against the accused-appellant. 2.5 Postmortem on the body of deceased was done on 05.03.2008 at about 4.30 P.M. Following injuries were found on the body of deceased : Ante Mortem Injuries 1. Lacerated wound 3cm X 2.5 cm, bone deep torn on right side of skull 7cm above right ear. 2. Lacerated wound 3cm X 3 cm, bone deep torn on right side of occipital region 6 cm back to right ear. Cause of death as opined by the Doctor was coma caused due to anti mortem injuries on head and death took place about half day before. 2.6 In due course of time case was committed to the Court of Sessions and was registered as Sessions Trial No. 946 of 2008. 2.7 On 20.09.2008, charge under Section 302 I.P.C. was framed against the accused appellant. Appellant has denied the above charge and claimed for trial. 2.8 To prove its case the prosecution has examined first informant Mohd. Saleem-PW-1, Anus (son of appellant)-PW-2, Constable Ramasrey-PW-3, Dr. A.K. Srivastava-PW-4, Abdul Aziz-PW-5, Sub Inspector Raj Bahadur Sirohi-PW-6, SHO Vinod Kumar Sirohi-PW-7 in oral evidence and written report-Exhibit-'ka-1', Chik FIR-Exhibit-'ka-2', copy of General Diary entry (for registration of case)-Exhibit-'ka-3', Postmortem Report-Exhibit-'ka-4', Inquest Report-Exhibit-'ka-5', Site Plan-Exhibit-'ka-9', recovery memos-Exhibits-'ka-10 to 12', arrest papers of accused-Exhibit-'ka-13', information of arrest-Exhibit-'ka-14 and charge sheet-Exhibit-'ka-15' documentary evidence along with above referred material exhibits. 2.9 The accused in his statement recorded under Section 313 Cr.P.C. has denied the prosecution case and evidence produced by it stating therein that he has been falsely implicated in the present case. The witnesses have given evidence against him due to enmity. 2.9 The accused in his statement recorded under Section 313 Cr.P.C. has denied the prosecution case and evidence produced by it stating therein that he has been falsely implicated in the present case. The witnesses have given evidence against him due to enmity. At the time of incident he was not in his senses and was not aware that what he has done. He has further stated that he used to work as 'book binder". However, no evidence has been produced by the appellant in his defence. 2.10 After hearing learned counsel for the parties and perusal of evidence available on record the Trial Court has convicted and sentenced the appellant as referred above. 2.11 Hence this appeal has been filed by the appellant challenging the impugned judgment and order. 3. We have heard Sri Gaurav Kalia, learned Amicus Curiae for the appellant and learned A.G.A. for the State of U.P. 4. Learned Amicus Curiae has urged that: 4.1 Impugned judgment and order is wrong, illegal and contrary to the evidence and material available on record. 4.2 No blood stains were found on the hammer and blood found on other articles is also not proved as blood of deceased which also cast serious doubts on the prosecution case. 4.3 Learned Trial Court has not properly appreciated the evidence in its right perspective. Marriage of appellant was solemnized before 11 years. He has four children from the above wedlock. There was no dispute or disagreement between him and his deceased wife. PW-1 is not eyewitness of the incident. The only eyewitness is a child-PW-2 Anus, who is too young and of tender age. He was not in position to understand the things in their correct reference and context. As such his evidence is not reliable. Apart from that there are also various infirmities and contradictions in his evidence. 4.4 Other witness of fact PW-5 'Aziz Ahmad' is also not eyewitness of the incident. As such whole case of prosecution is revolving around the evidence of a child witness PW-2 'Anus' who is not a reliable witness due to his tender age and immaturity. 4.5 In this regard learned counsel for appellant placed reliance on the decisions of Hon'ble Apex Court in Panchhi and Others v. State of U.P. (1998) 7 SCC 177 , which is on the point of appreciation of evidence of fact witness. The Court in paragraph no. 4.5 In this regard learned counsel for appellant placed reliance on the decisions of Hon'ble Apex Court in Panchhi and Others v. State of U.P. (1998) 7 SCC 177 , which is on the point of appreciation of evidence of fact witness. The Court in paragraph no. 11 held thus : "11. Shri R.K. Jain, learned Senior Counsel, contended that it is very risky to place reliance on the evidence of PQ 1, he being a child witness. According to the learned counsel, the evidence of child witness is generally unworthy of credence. But we do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized. 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." 4.6 Counsel for appellant also placed reliance on the decision of Hon'ble Apex Court rendered in Suryanarayana v. State of Karnataka (2001) 9 SCC 129 . The Court in paragraph Nos. 5 and 6 held thus : "5. Admittedly, Bhavya (PW-2), who at the time of occurrence was about four years of age, is the only solitary eyewitness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eyewitness. The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The evidence of PW-2 cannot be discarded only on the ground of her being of tender age. The fact of PW-2 being a child witness would require the court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. The fact of PW-2 being a child witness would require the court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not. 6. This Court in Panchhi v. State of U.P. (1998) 7 SCC 177 held that the evidence of the child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others till him and thus an easy prey to tutoring. The evidence of the child witness must find adequate corroboration before it is relied upon as the rule of corroboration is of practical wisdom than of law (vide Prakash v. State of M.P. (1992) 4 SCC 225 ,Baby Kandayanathil v. State of Kerala 1993 Supp (3) SCC 667, Raja Ram Yadav v. State of Bihar (1996) 9 SCC 287 , Dattu Ramrao Sakhare v. State of Maharashtra (1997) 5 SCC 341 ." 4.7 It is true that accused appellant has not offered any explanation in respect of death of his wife, but still prosecution cannot absolve to prove its case against the appellant beyond reasonable doubt. In support of his contention learned counsel for the appellant relied upon the decision of Apex Court rendered in Narendra Kumar v. State (NCT of Delhi) (2012) 7 SCC 171 . The Court in paragraph no. 29 observed thus : "29. In support of his contention learned counsel for the appellant relied upon the decision of Apex Court rendered in Narendra Kumar v. State (NCT of Delhi) (2012) 7 SCC 171 . The Court in paragraph no. 29 observed thus : "29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (videTukaram v. State of Mhaharashtra (1979) 2 SCC 143 and Uday v. State of Karnataka (2003) 4 SCC 46 ." 4.8 Learned counsel for appellant further placed reliance on the decision of Apex Court in Kulvinder Singh and Another v. State of Haryana (2011) 5 SCC 258 , the Court in paragraph no. 26 of the judgment held thus : "26. ............The prosecution has to establish its case beyond reasonable doubt and cannot derive any strength from the weakness of the defence put up by the accused. ................" 4.9 Counsel for appellant also placed reliance on the judgment of Apex Court rendered in Shambu Nath Mehra v. State of Ajmer 1956 CRI L.J. 794, the Court in paragraph Nos. 8, 9, 10 and 11 of the judgment observed thus : "8. The only proof that is adduced in support of the allegation that he did not is that no second class tickets were issued at Ajmer on the relevant dates either for Abu Road or for Reengus. This is proved by the Booking Clerk Ram Dayal, 4. 8, 9, 10 and 11 of the judgment observed thus : "8. The only proof that is adduced in support of the allegation that he did not is that no second class tickets were issued at Ajmer on the relevant dates either for Abu Road or for Reengus. This is proved by the Booking Clerk Ram Dayal, 4. But the same witness proves that tickets are not always issued and that passengers can pay the fare on the train; also, if the second class is fully booked no further tickets are issued till the arrival of the train. In that case, passengers sometimes buy a third class or an inter-class ticket and then pay the difference to the conductor or guard of the train if they are able to find second class accommodation when the train arrives. There is no proof that one or other of these courses was not followed on the dates with which we are concerned. The railway registers and books would show whether or not any such payments were made on those dates and the State could have proved the absence of such payments as easily as it was able to prove, from the same sort of material, that no second class tickets were issued. Instead of doing that, the State contented itself with saying that no second class tickets were issued and, then relying on Illustration (b) to Section 106 of the Evidence Act, it contended that the burden of proving that the accused did pay the second class fares was on him. Illustration (b) runs thus: "A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him". But this is only an illustration and must be read subject to the section itself and cannot travel beyond it. The section runs- "When any fact is especially within the knowledge of any person, the burden of proving that fact is on him". The stress, in our opinion, is on the word "especially". Section 106 is an exception to Section 101. Section 101 lays down the general rule about the burden of proof. "Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist". The stress, in our opinion, is on the word "especially". Section 106 is an exception to Section 101. Section 101 lays down the general rule about the burden of proof. "Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist". Illustration (a) says- "A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime". "9. 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 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 he whether he did or did not. It is evident that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that be did not commit the crime for which he is tried. These cases are Attygalle v. Emperor AIR 1936 PC 169 and Seneviratne v. R. (1936) 3 All ER 36, 49. 10. Illustration (b) to Section 106 has obvious reference to a very special type of case, namely to offences under Section 112 and 113 of the Indian Railways Act for travelling or attempting to travel without a pass or ticket or with an insufficient pass, etc. 10. Illustration (b) to Section 106 has obvious reference to a very special type of case, namely to offences under Section 112 and 113 of the Indian Railways Act for travelling or attempting to travel without a pass or ticket or with an insufficient pass, etc. Now if a passenger is seen in a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove, or even with due diligence to find out, where he came from and where he is going and whether or not be purchased a ticket. On the other band, it would be comparatively simple for the passenger either to produce his pass or ticket or, in the case of loss or of some other valid explanation, to set it out; and so far as proof is concerned, it would be easier for him to prove the substance of his explanation than for the State to establish its falsity. 11. We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts." 4.10 Counsel for appellant further relied upon the decision of Apex Court in Mohd. Faizan Ahmad alias Kalu v. State of Bihar (2013) 2 SCC 131 , the Court in paragraph no. 18 of the judgment observed as under : "18. Faizan Ahmad alias Kalu v. State of Bihar (2013) 2 SCC 131 , the Court in paragraph no. 18 of the judgment observed as under : "18. ........The High Court was carried away by the heinous nature of the crime and, in that, it lost sight of the basic principle underlying criminal jurisprudence that suspicion, however grave, cannot take the place of proof. If a criminal court allows its mind to be swayed by the gravity of the offence and proceeds to hand out punishment on that basis, in the absence of any credible evidence, it would be doing great violence to the basic tenants of criminal jurisprudence." 4.11 In last the learned counsel for the appellant urged in alternative that in case the appellant is treated to be rightly convicted, still no offence under Section 302 I.P.C. is made out against him, because there are only two injuries on the body of the deceased, which are not sufficient to establish intention of murder of deceased at the hands of appellant. 5. Per contra, learned A.G.A. has contended that: 5.1 In the present case son of victim PW-2 Anus has himself given evidence against his father. His ability and competency to appear as witness has been tested by the Trial Court, it was fully satisfied after making necessary queries from him and thereafter his evidence was recorded and he has been found fully competent and therefore, learned counsel for appellant cannot question the ability of the witness. 5.2 It came into evidence of PW-1, father of deceased that for the last 5-6 months accused appellant was not doing any work and was beating and quarrelling with the deceased. Before some time of incident he has brought a hammer and extended threats to the deceased that he will kill her by attacking from the said hammer. 5.3 At the time of incident, appellant, his wife Rizwana Bano (since deceased), their son Anus and other minor children were present in the house. Before some time of incident he has brought a hammer and extended threats to the deceased that he will kill her by attacking from the said hammer. 5.3 At the time of incident, appellant, his wife Rizwana Bano (since deceased), their son Anus and other minor children were present in the house. PW-2 Anus, has given evidence against the appellant, therefore, if any otherwise facts related to the murder of his wife are in existence or in the knowledge of the appellant, those may be disclosed by the appellant alone but the accused-appellant has not given any explanation in that respect and even had not put any suggestion as to how the occurrence has taken place as required under Section 106 of Indian Evidence Act. Therefore, in the aforesaid circumstances the Trial Court has rightly drawn inference against the accused appellant. 5.4 On the basis of evidence and material produced before the Trial Court the prosecution has successfully proved its case against the appellant beyond any reasonable doubt and accordingly he has been rightly convicted and sentenced by the Trial Court. 5.5 The appeal is devoid of merit and is liable to be dismissed. 5.6 In support of his contentions learned A.G.A. has placed reliance on the decision of Apex Court rendered in State of U.P. v. Lakhmi 1998 CRI. L.J. 1411 (SC), the Court in paragraph Nos. 7, 8 and 10 held as under : "7...............If an accused admits any incriminating circumstances appearing in evidence against him there is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy. 8. Sub-section (4) of Section 313 of the Code contains necessary support to the legal position that answers given by the accused during such examination are intended to be considered by the Court. The words "may be taken into consideration in such enquiry or trial" in sub-section (4) would amount to a legislative guideline for the Court to give due weight to such answers, though it does not mean that such answers could be made the sole basis of any finding. 9.................. 10. We make it clear that answers of the accused, when they contain admission of circumstances against him are not by themselves, delinked from the evidence, be used for arriving at a finding that the accused had committed the offence." 6. 9.................. 10. We make it clear that answers of the accused, when they contain admission of circumstances against him are not by themselves, delinked from the evidence, be used for arriving at a finding that the accused had committed the offence." 6. We have given careful consideration to the rival arguments raised by learned counsel for the parties and perused the record. 7. PW-1 Mohd. Saleem who is first informant and father of deceased Rizwana, has stated in his evidence that the incident took place in the night of 05.03.2008 at 2.20 A.M.. He had got the report scribed by a person named Sazid and after reading the same, put his signatures on it and submitted the same in Police Station-Wazirganj and lodged the report against accused Ibrahim. He has identified the written report paper No. R-6(1) scribed by Sazid. He also verified his signatures on the written report and approved it as Exhibit-'ka-1'. He had stated in his evidence that in the night of 05.03.2008 at 2.30 A.M. his son-in-law has murdered his daughter by attacking her with hammer and made good his escape from the spot. After receiving information of the incident from Abdul Aziz, he reached to spot and found the dead body of his daughter pooled in blood. His 'Nati' (grand son) Anus told him that his father has killed his mother, attacking by hammer. He lodged a report of the incident at Police Station-Wazirganj. The Police has taken his statement. The Police also interrogated his grand son-in-law and grand daughter-in-law (Nati and Natin). In his cross examination, PW-1 has deposed that after 4 to 5 years of marriage there was no complaint and there was no dispute. After two years of marriage one daughter 'Ikra' was born and till that time there was no dispute between husband and wife. Ibrahim-appellant was demanding money from his daughter but never demanded money from him. Till 3 to 4 years after marriage appellant was not beating his daughter but thereafter started assaulting her. He had received information of the incident from one Khalid Umar where he was working. Two days before the incident, his daughter and son-in-law Ibrahim came to his house and returned after having dinner. At the time of return he had retained two daughters of Ibrahim. First information report had been lodged by the residents of locality. He did not reached on the spot. Two days before the incident, his daughter and son-in-law Ibrahim came to his house and returned after having dinner. At the time of return he had retained two daughters of Ibrahim. First information report had been lodged by the residents of locality. He did not reached on the spot. He went to postmortem house at 2.30 p.m. He has himself stated that the Inspector had made queries from him. He is an uneducated person and is capable of only making signatures. He has no enmity with Ibrahim-appellant. He and his daughter Rizwana had no complaint against mother and father of Ibrahim. Earlier Ibrahim was working in a book binding shop, but subsequently, he used to bring binding work at home. He had no complaint from Ibrahim. He had denied suggestions put by the defence to the effect that Ibrahim was not beating his daughter, Ibrahim was doing work, Ibrahim has not killed his daughter intentionally and he was giving false evidence. 8. PW-2 Anus, is the son of deceased and appellant. He is a child witness, before recording his statement, the Trial Court has asked various questions from him and after considering his replies, found that the witness is giving right answers, is understanding each and every thing and is competent to be a witness. The witness Anus PW-2 has stated in his evidence that his father had killed his mother. He has also recognised the appellant present during evidence in the Court as his father. He has seen his father killing his mother by causing injuries of hammer blow on her head. He had told the above fact to his Nana and Nani (grand maternal father and grand maternal mother). He has also told this fact to the Police that his father has killed his mother in the night. In his cross examination PW-2 'Anus' has stated that he had three sisters and one brother-Hamza. He is residing with his Nani. He has one 'Papa' and his name is 'Nana'. He has one 'Ammi'. His 'Papa' has murdered his 'Ammi'. When his father killed his mother, that time he was not in the house of his Nani. There is no theft. he is aged 3 years. He did not know counting and could not tell the figures from 1 to 10. He has one 'Papa' and his name is 'Nana'. He has one 'Ammi'. His 'Papa' has murdered his 'Ammi'. When his father killed his mother, that time he was not in the house of his Nani. There is no theft. he is aged 3 years. He did not know counting and could not tell the figures from 1 to 10. When yellow pen was shown to him, he told its colour to be red and after seeing red pen he told colour of blood red. His 'Nana' and 'Nani' have not told him that his 'Papa' has killed his mother. After seeing the Police, he had recognised the Police. Things are being hit by the hammer. Papa was hitting books by the hammer. When 'Papa' killed 'Ammi' at that time none was present. After seeing his 'Nana' he told him 'Papa' as he was also saying his 'Nana' as 'Papa'. He does not know English alphabets. 9. PW-5, Abdul Aziz has stated in his evidence that he knows Ibrahim and is residing in the same house on rent where Ibrahim is residing. He is living on the first floor while Ibrahim-appellant was living on the second floor. The land lady was living on the ground floor. Ibrahim was doing the work of binding. From six months before the incident, Ibrahim was not going on his work and was unemployed. Appellant's wife Rizwana was any how meeting domestic expenses by working as labourer. Appellant and his wife were most of the time quarrelling on the issue of meeting domestic expenses. In anger, Ibrahim-appellant extended threats to his wife for killing her. PW-5 further stated in his evidence that the incident is of 05.03.2008 in the morning about 4-5 a.m., he had seen Ibrahim alias Pappu going down from stairs by opening the door. At about 8-9 a.m. Mohd. Anus has told him that his father had killed his mother by attacking her by the hammer. When he went on upper floor he saw that Rizwana was lying dead, bleeding was continuing. He had informed about the incident to the family members of Rizwana and to Police. At about 8-9 a.m. Mohd. Anus has told him that his father had killed his mother by attacking her by the hammer. When he went on upper floor he saw that Rizwana was lying dead, bleeding was continuing. He had informed about the incident to the family members of Rizwana and to Police. On the date of incident Police had recovered blood stained two pillow covers and one piece of bed sheet, blood stained and plain earth and the hammer and prepared their recovery memo before him and also obtained his signatures on these after reading over these to him. In his cross examination, PW-5 stated that he has himself not seen Ibrahim-appellant beating his wife, but has seen light quarrel between them. As a usual practise, the land lady used to lock the main door at 10.00 p.m. and same was opened by her in the morning at about 6.00 a.m. At the time of incident Ibrahim's daughter 'Alfiya' and son 'Anus' were there. He had not heard about beating or weeping. The incident took place probably in the night around 2.00-3.00 a.m. Ibrahim was also doing binding work at his home. He had not seen Ibrahim to bring 'hammer'. On getting information from Anus, he went to the spot and saw that Rizwana was lying on bed. He had informed the family members of Rizwana, but had not lodged the first information report. He had no quarrel with Ibrahim. He has not seen Ibrahim going away. The witness had denied suggestions to the effect that he had lodged any written first information report and he is inimical to Ibrahim. 10. PW-3 Constable 1496 Ram Asrey, has stated in his evidence that on 05.03.2008 he was posted as Constable Moharrir at Police Station-Wazirganj, District-Lucknow. On the basis of written report filed by Mohd. Saleem he has prepared the Chik First Information Report No. 83/8, Case Crime No. 87 of 2008, under Section 302 I.P.C. against Ibrahim alias Pappu. He has proved the Chik FIR as Exhibit-'ka-2' and a copy of G.D. entry for registration of the case as Exhibit - 'ka-3'. 11. PW-4 Dr. On the basis of written report filed by Mohd. Saleem he has prepared the Chik First Information Report No. 83/8, Case Crime No. 87 of 2008, under Section 302 I.P.C. against Ibrahim alias Pappu. He has proved the Chik FIR as Exhibit-'ka-2' and a copy of G.D. entry for registration of the case as Exhibit - 'ka-3'. 11. PW-4 Dr. A.K. Srivastava who had conducted postmortem examination on the body of deceased Rizwana stated in his evidence that on 05.03.2008 he had conducted the postmortem on the body of deceased Rizwana and found following ante mortem injuries on her body : - Ante Mortem Injuries 1. Lacerated wound 3cm X 2.5 cm, bone deep torn on right side of skull 7cm above right ear. 2. Lacerated wound 3cm X 3 cm, bone deep torn on right side of occipital region 6 cm back to right ear. Cause of death as opined by the Doctor was coma caused due to anti mortem injuries on head and death was caused about half day before. PW-4 also opined that the above injuries may be caused by use of hammer. In his cross examination, this witness has told that above injuries may also be caused by falling from a hight upon a stone or hard wooden object. 12. PW-6, Sub Inspector Raj Bahadur Dwivedi has stated in his evidence that on 05.03.2008 he was posted at Police Station-Wazirganj, Lucknow as Senior Sub Inspector and on the above date he had prepared the inquest report of deceased Smt. Rizwana W/o Ibrahim alias Pappu R/o 159/156, Mohalla-Shyam Nagar (Rakabganj), Exhibit - 'ka-5'. He has also prepared Challan Nash, Photo Nash, Namoona Mohar which are Exhibit - 'ka-6', 'ka-7' and 'ka-8' respectively. 13. PW-7, Inspector Vinod Singh Sirohi stated in his evidence that on 05.03.2008 he was posted as Station House Officer at Police Station-Wazirganj, Lucknow. He has since taken investigation of Case Crime No. 37/2008 under Section 302 I.P.C. He has recorded statement of Mohd. Saleem-PW-1 and prepared site plan Exhibit - 'ka-9', recorded statement of witnesses, arrested the accused and recorded his statement and after finding sufficient evidence against the accused filed charge sheet Exhibit - 'ka-15' against the appellant. 14. He has since taken investigation of Case Crime No. 37/2008 under Section 302 I.P.C. He has recorded statement of Mohd. Saleem-PW-1 and prepared site plan Exhibit - 'ka-9', recorded statement of witnesses, arrested the accused and recorded his statement and after finding sufficient evidence against the accused filed charge sheet Exhibit - 'ka-15' against the appellant. 14. Learned counsel for appellant has tried to discard the evidence of PW-1, Mohd Saleem and PW-5, Abdul Aziz on the ground that they were not eyewitness of the incident and there are contradictions in their evidence. 15. It is true that PW-1 and PW-5 are not eyewitness of the incident, and some contradictions are also in their statements, but, in their evidence they have brought certain facts and circumstances before the Trial Court which are relevant for the proper decision in the case. Therefore, their whole evidence cannot be discarded only on the ground that they are not eyewitness of the incident. So far as contradictions between their earlier statement and in cross examination are concerned, those were not properly put before the witnesses to clarify that among the two contradictory statements made by them in their evidence, which one is true, the earlier statement or the subsequent one. Therefore, the accused-appellant could not get any benefit of these contradictions in the statements of above witnesses and their evidence cannot be discarded on the basis of such contradictions. 16. It is clear from the evidence of above witnesses that prior to few months of the incident appellant has left his work of book binding and was unemployed. There was quarrel between the deceased and the appellant on the issue of meeting domestic expenses. Few days prior to incident the appellant brought a hammer and threatened deceased Rizwana to kill her, by attacking her with hammer. On the fateful day, in the house there was appellant, his deceased wife Rizwana, son Anus and other minor sons and daughters. The deceased Rizwana was killed in suspicious circumstances having two injuries on her head and according to evidence of PW-4 Dr. A.K. Srivastava, above injuries were caused by hammer. 17. The inquest report of the body of deceased was prepared at the alleged site and according to postmortem report Exhibit-'ka-4 ' cause of death was coma due to ante mortem injuries on head and the time of death was about 1/2 day before. 18. A.K. Srivastava, above injuries were caused by hammer. 17. The inquest report of the body of deceased was prepared at the alleged site and according to postmortem report Exhibit-'ka-4 ' cause of death was coma due to ante mortem injuries on head and the time of death was about 1/2 day before. 18. It is evident from statement of appellant recorded under Section 313 Cr.P.C. that he has denied the prosecution case and its evidence by saying that witness are deposing against him due to enmity, but, he has not told in his statement that in what circumstances his wife died in his house, where he was present, because he has not denied his presence on the spot and his son Anus has given evidence of killing his mother by his 'Papa' i.e. the appellant. In the facts and circumstances the appellant as head of family, husband of deceased and alone major person in the house, was duty bound to disclose the facts and circumstances within his knowledge as required under Section 106 Cr.P.C. 19. There is no dispute on the proposition of law rendered by Hon'ble Apex Court in the cases of Narendra Kumar (supra), Kulvinder Singh (supra), Shambu Nath Mehra (supra) and Mohd. Faizan Ahmad alias Kalu (supra), but those propositions of law are based on the consideration of peculiar facts of the case concerned and are not applicable to the facts of the present case. 20. In addition to above a Division Bench of this Court consisting one of us (Hon'ble Surendra Vikram Singh Rathore) and Hon'ble Anil Kumar Srivastava-II, J.J. in Criminal Appeal No. 164 of 2010 - Awadesh Kumar Awasthi v. State of U.P. (decided on 06.06.2016), while considering the scope of Section 106 of Indian Evidence Act and the term "proof beyond reasonable doubt", in paragraph no. 22 and 23 said as under : "22. ..... Hon'ble the Apex Court in the case of Gajanan Dashrath Kharate v. State of Maharashtra has discussed the applicability of Section 106 of the Evidence Act and also the effect of false defence in paragraph Nos. 12 and 13 as under: - "12. As seen from the evidence, Appellant-Gajanan and his father-Dashrath and mother-Mankarnabai were living together. On 07.04.2002, mother of the Appellant-accused had gone to another village-Dahigaon. Prosecution has proved presence of the Appellant at his home on the night of 07.04.2002. 12 and 13 as under: - "12. As seen from the evidence, Appellant-Gajanan and his father-Dashrath and mother-Mankarnabai were living together. On 07.04.2002, mother of the Appellant-accused had gone to another village-Dahigaon. Prosecution has proved presence of the Appellant at his home on the night of 07.04.2002. Therefore, the Appellant is duty bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of occurrence, when accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime. (underlined by us) 13. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681 , it was held as under: 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. In Nika Ram v. State of H.P. (1972) 2 SCC 80 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with "khukhri" and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the Appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the Appellant is under an obligation to give a plausible explanation for the cause of her death in his statement Under Section 313 Code of Criminal Procedure. The mere 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 is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal (1992) 3 SCC 300 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him Under Section 302 Indian Penal Code. In State of T.N. v. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime. (Underlined by us) Same view was reiterated by this Court in State of Rajasthan v. Parthu (2007) 12 SCC 754 ." On this point, reference may also be made in another recent pronouncement of Hon'ble the Apex Court in the case of Chaman and another v. State of Uttarakhand reported in JT 2016 (4) SC 187 wherein Hon'ble the Apex Court in paragraphs no. 29, 30 and 31 has observed as under: - "29. Referring to Section 106 of the Evidence Act, it was propounded that the said section was not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but would apply to cases where prosecution had succeeded in proving facts from which a reasonable inference could be drawn regarding the existence of certain other facts, unless the accused, by virtue of his special knowledge regarding such facts, succeed to offer any explanation, to drive the court to draw a different inference. 30. The following observations by this Court in the context of above legal provision in Shambhu Nath Mehra v. State of Ajmer AIR 1956 SC 404 was adverted to with approval. "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 relive 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. 31. The word ''especially' stresses that it means facts that are pre-eminently or exceptionally within his knowledge. 31. Proof beyond reasonable doubt, as has been held in a plethora of decisions of this Court, is only a guideline and not a fetish and that someone, who is guilty, cannot get away with impunity only because truth may suffer some infirmity when projected through human processes as has been observed in Inder Singh and another v. The State (Delhi Administration) (1978) 4 SCC 161 . A caveat against exaggerated devotion to the rule of benefit of doubt to nurture fanciful doubts or lingering suspicion so as to destroy social defence has been sounded by this Court in Gurbachan Singh v. Satpal Singh and others (1990) 1 SCC 445 . It has been propounded that reasonable doubt is simply that degree of doubt which would permit a reasonable and a just man to come to a conclusion. It has been underlined therein that reasonableness of doubt must be commensurate to the nature of the offence to be investigated." 23. In the facts of the case in hand what happened inside the house of the appellant due to which deceased died was only within the knowledge of the appellant and it is a proved fact that he has come with an absolutely false defence." 21. On behalf of the appellant credibility and reliability of sole eyewitness PW-2 'Anus' is tried to be shaken on the ground of being a child witness of tender age and unable to understand things in their right perspective. In support of his contentions reliance was also placed on the decision of Hon'ble Apex Court rendered in the cases of Panchhi and Others and Suryanarayana (both supra). In these decisions it is laid down by the Hon'ble Apex Court that 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. 22. 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. 22. It is clear from scrutiny of evidence of PW-2 'Anus' that prior to recording his testimony the Trial Court has satisfied itself by asking various questions to him as to whether he understood the things and is in position to give correct answers. In his evidence he has clearly stated that his father (appellant) has killed his mother. He has also recognised the appellant as his father present in the court and told that he has attacked by hammer on head of his mother and killed her. The incident was seen by him. He has told this fact to his Nana and Nani (grand father and grand mother). He has also told this fact to the Police that his Papa has killed Ammi in the night. 23. In his cross examination he has fairly admitted that he did not know counting even figures one to ten and alphabets, which provide a ring of truth in his statement. He has further deposed in his cross-examination that at the time of incident he was not in the house of his Nani. He also said his Nana as 'Papa'. His Nana and Nani have not told him that his father had killed his mother. He has rightly told colour of blood red and recognised Police. Except to telling colour of yellow pen wrongly as 'Red', he has committed no major mistake which may indicate that he is not understanding the things rightly or giving wrong or false answers. 24. Most of facts stated in his evidence by PW-2 'Anus', in his examination in chief and in cross examination were not challenged by the defence putting further questions in respect of them or by putting otherwise suggestions. Even he was not suggested that he has not seen the incident, giving wrong evidence or tutored by any one. Apart from that he has specifically denied that he was told by Nana and Nani that his father has killed his mother. Not only this his evidence also finds corroboration from the answer of appellant in respect of question no. Even he was not suggested that he has not seen the incident, giving wrong evidence or tutored by any one. Apart from that he has specifically denied that he was told by Nana and Nani that his father has killed his mother. Not only this his evidence also finds corroboration from the answer of appellant in respect of question no. 51, of his statement recorded under Section 313 Cr.P.C., which reads thus : %hnd1%"iz'u 51%& D;k dqN vkSj dguk gS\ mRrj %& th ughaA ?kVuk ds le; eSa gks'k esa ugha Fkk eq>s ugh irk eSaus fd;kA"%hnd2% 25. A three Judge Bench of Hon'ble Apex Court has considered the scope of answers given by accused in his statement recorded under Section 313 Cr.P.C. in the case of State of U.P. v. Lakhmi (supra), and held that the answers of the accused, when they contain admission of circumstances against him are not by themselves, delinked from the evidence, be used for arriving at a finding that the accused had committed the offence. 26. In the light of above verdict of Hon'ble Apex Court in the case of State of U.P. v. Lakhmi (supra), in the present case answer given by the accused-appellant in his statement recorded under Section 313 Cr.P.C. can be safely read and be treated to corroborate the statement of PW-2 'Anus' in respect of his guilt. 27. Above answer of the appellant is also clearly indicative that he was present at the spot at the time of incident, but as he was not in senses so he was not in position to tell what has been done by him. Thus appellant does not say that he has not done any thing but has avoided to explain the circumstances under which his wife died. 28. On the basis of our discussion in the foregoing paragraphs we are of considered view that PW-1 'Anus' was not tutored by any one and except to minor variation, there is no major defect in his evidence which may render his evidence unreliable or unworthy of reliance. In the result we find evidence of PW-2 'Anus' fully reliable and credit worthy. 29. On the basis of above discussion, we find that witness PW-2 'Anus' is fully reliable, while PW-1 'Mohd. Saleem and PW-5 'Abdul Aziz' are partly reliable witnesses. In the result we find evidence of PW-2 'Anus' fully reliable and credit worthy. 29. On the basis of above discussion, we find that witness PW-2 'Anus' is fully reliable, while PW-1 'Mohd. Saleem and PW-5 'Abdul Aziz' are partly reliable witnesses. We are also of considered view that on the basis of evidence available on record prosecution has successfully proved its case against accused-appellant beyond any reasonable doubt. Therefore, the Trial Court has committed no mistake or illegality in convicting and sentencing the appellant by means of impugned judgment and order. 30. Sofar as question of nature of offence committed by the accused and whether it falls under Exception 4 of Section 300 I.P.C. is concerned, this point was discussed by the Apex Court in Murlidhar Shivram Patekar v. State of Maharashtra 2014 (3) JIC 830 (SC). The Court in paragraph no. 19 held thus : "The question however still remains as to the nature of offence committed by the accused and whether it falls under Exception 4 of Section 300 I.P.C. In the case of Surinder Kumar (supra), this Court has held as under : "(7) To invoke this Exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled of the benefit of this Exception provided he has not acted cruelly." 31. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled of the benefit of this Exception provided he has not acted cruelly." 31. It is clear from the evidence available on record that accused-appellant was extending threat to kill the deceased his wife attacking her by hammer due to quarrel regarding meeting out domestic expenses as he was unemployed in those days and on the fateful day, he had killed his wife by causing two injuries on her head by hammer in the night, probably when she was in deep sleep. The act committed by the accused killing his wife was a pre-planned act and causing two hammer injuries on the head of a helpless and sleeping lady who was wife of the accused-appellant and her consequent death due to above injuries is certainly a cruel act, which was committed by the accused-appellant taking undue advantage. This is also not the case of sudden fight and therefore, does not comes under Exception 4 of Section 300 I.P.C. The offence committed by the accused-appellant is certainly horrible and he has been rightly convicted under Section 302 I.P.C. As such conditions set down by the Hon'ble Apex Court to bring the case under Exception 4 of Section 300 I.P.C. in the case of Murlidhar Shivram Patekar (supra) are not fulfilled in the case of appellant. 32. In view of the discussion made above, we are of the considered view that the trial court was absolutely right in holding that the appellant has committed offence of murder of his wife. Accordingly, conviction and sentence of the appellant deserves to be confirmed. Therefore, the appeal preferred by the appellant deserves to be dismissed and is hereby dismissed. The judgment and order dated 06.10.2010, passed by learned Special Additional Sessions Judge, CBI (Ayodhya Prakaran), Lucknow in Sessions Trial No. 946 of 2008 - State v. Ibrahim alias Pappu, is hereby confirmed. 33. The appellant is in jail. He shall serve out the sentence awarded by the Trial Court. 34. Before parting with the case we would like to record our sincere appreciation for valuable assistance provided by learned Amicus Curiae Sri Gaurav Kalia to decide this case. 35. 33. The appellant is in jail. He shall serve out the sentence awarded by the Trial Court. 34. Before parting with the case we would like to record our sincere appreciation for valuable assistance provided by learned Amicus Curiae Sri Gaurav Kalia to decide this case. 35. Office is directed to certify this order to the Court concerned to ensure compliance and also sent back lower court's record. Appeal dismissed.