JUDGMENT : Mohammad Rafiq, J. 1. This criminal appeal is directed against judgment dated 20.10.2010 of learned Additional Sessions Judge, Aklera, District Jhalawar, in Sessions Case No. 62/2009, whereby accused-appellant Vinod S/o Shri Kalu Lal has been convicted for offence under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment with fine of Rs. 5,000/-; and in default in payment of fine, to further undergo one year s rigorous imprisonment. 2. Facts of the case, in brief, are that on 11.08.2009 one Radhey Shyam S/o Shri Prabhu Lal submitted a written report (Exhibit P-18) to the Station House Officer, Police Station Aklera, District Jhalawar, alleging that in the night of 11.08.2009 his sister Santosh Bai has been murdered by her husband Vinod Kumar, her mother-in-law Vidhya Bai and her elder sister-in-law (jithyani) Kalabai. The police, on that basis, chalked out regular First Information Report No. 291/2009 for offence under Section 302 IPC and commenced investigation. After investigation, charge-sheet was tiled against accused-appellant in the court of Additional Chief Judicial Magistrate, Aklera. The Additional Chief Judicial Magistrate, committed the same on the very same day to the court of Sessions, wherefrom it was made over to Additional Sessions Judge, Aklera, District Jhalawar, for trial. In support of its case, the prosecution examined 21 witnesses and got 41 documents exhibited. The defence did not examine any witness, however, got four documents exhibited. Learned trial court, after completion of trial, convicted and sentenced the accused-appellant in the manner indicated above. Hence, this appeal. 3. Mr. Santosh Kumar Jain, learned counsel for accused-appellant, has argued that conviction of accused-appellant has been recorded contrary to weight of evidence available on record. According to him, this is a case of total lack of evidence and that the prosecution has completely failed to prove guilty against accused appellant beyond reasonable doubt. It is argued that while appreciating the evidence in a criminal case, the court should keep in view the two cardinal principles that the guilt against accused must be proved beyond reasonable doubt and that the burden on the accused is not so heavy to prove the plea taken by him as it lies on the prosecution and therefore it is the prosecution which is required to prove the guilt of the accused beyond reasonable doubt and the accused cannot be required to prove his innocence. The accused has to merely probabilize his defence by preponderance of evidence. In the present case, the accused has set up a plea that he was not present at Aklera as he had gone to Jhansi and reached Aklera on the next evening of the date of incident. He has been falsely implicated in the criminal case There were several infirmities and contradictions in the statements of prosecution witnesses and therefore no reliance can be placed on the testimony of such witnesses. Anil (PW-1), Aruna (PW-2), Anand (PW-3), Surajmal (PW-4). Munshi Lal (PW-5), Sangeeta (PW-20) and Ranjeeta (PW-21) have not support the prosecutory story and have been declared hostile. The complainant, who lodged the FIR, has stated that deceased Santosh Bai was his sister. Before her murder, she came to her parents' house on the festival of 'raksha bandhan' and on that day she informed that her in-laws were treating her good (sic). 4. Mr. Santosh Kumar lain learned counsel for accused-appellant, has argued that Bhawna (PW-7), daughter of appellant of appellant and deceased, is the star witness of the case and learned trial court has based the conviction on her statement. She is a child witness and when her statement was recorded, she was only bout 7-8 years old. While the incident is alleged to have taken place on 11 08.2009, the statement under Section 161 Cr.P.C. was recorded on 13.08.2009 The prosecution has not furnished any explanation for the delay in recording the statement. There are a number of contradictions in her two statements, one given to the police and another recorded in the court. In cross-examination, she admit that she had come to the court from the house of her mother's parents with her maternal uncle and that her maternal uncle had explained to her the fact about recording of her statement in the court. In fact, she stated that her maternal grandfather and maternal uncle had explained to her at Jhalawar as to what statement has to be given in the court. She has thus been tuitored to speak falsehood and her testimony cannot be relied upon. 5. Learned counsel for accused-appellant, in support of his argument, has relied on judgment of the Supreme Court in Bhagwan Singh v. State of M.P., 2003(3) SCC 21 , wherein it was held that conviction cannot be sustained on the basis of statement of a child witness. 5. Learned counsel for accused-appellant, in support of his argument, has relied on judgment of the Supreme Court in Bhagwan Singh v. State of M.P., 2003(3) SCC 21 , wherein it was held that conviction cannot be sustained on the basis of statement of a child witness. Reliance in this connection is also placed on another judgment of the Supreme Court in Arvind Singh v. State of Bihar, 1994 Cr.L.J. (SC) 1227, in which case the Supreme Court did not rely on testimony of child witness and acquitted the accused therein. It is argued that the trial court has found B' group blood on the banyan of accused, which matched with the blood group found on the 'kulhari', whereas fact is that there is no evidence to show that when accused was arrested on 17.08.2009 at about 7.00 PM he was wearing a banyan. It was at about 7.15 PM that the police is shown to have recovered blood smeared banyan from the accused. No independent witness has been produced to prove that the accused-appellant was wearing blood smeared banyan, which is shown to have been recovered. It is argued that it is difficult to believe that an accused, who would have committed murder two days before, would continue to wear the same banyan at the time of his arrest. Testimony of both witnesses, namely, Jagdish (PW- 17) and Lekhraj (PW-18) cannot be relied as they are police officials and not independent witnesses. Same witnesses have been produced to prove recovery of weapon 'kulhari'. These two witnesses have admit in the statements that 'kulhari' was recovered from open place, which was accessible to all and sundry. The prosecution witnesses are highly interested and their testimony should be discarded. 6. Mr. Santosh Kumar Jain, learned counsel for accused-appellant, has argued that Dr. Dwarka Lal Meena (PW-13) has stated that post-mortem on the body of deceased was conducted by the Medical Board and he was one of the members of the Medical Board. There were total six injuries found on the body of deceased, which is clear from the post-mortem report (Exhibit P-24). Injury no. 4 was lacerated wound in the size of 5 cm x 3 cm x 2 cm on the occipital part of skull. There is no explanation as to how this injury was caused. There were total six injuries found on the body of deceased, which is clear from the post-mortem report (Exhibit P-24). Injury no. 4 was lacerated wound in the size of 5 cm x 3 cm x 2 cm on the occipital part of skull. There is no explanation as to how this injury was caused. As per settled proposition of law, the prosecution was under obligation to confront the doctor with the weapon of offence to ascertain whether that injury could be cause by the kind of weapon, which is sought to be proved by the prosecution. In this connection, learned counsel for accused-appellant referred to statement of Ram Singh (PW-14), who has stated that several persons assembled around the place of incident situated in the mid of the city. The knife was recovered from the house surrounded by several houses. Recovery of weapon from the house also therefore could not be relied on. The accused, in his statement recorded under Section 313 Cr.P.C. has categorically stated that at the time of incident he was not present at the place of incident and he had been to Jhansi. In these circumstances, presumption of Section 106 of the Evidence Act cannot be drawn against accused-appellant. Learned trial court has passed the impugned judgment without examining the prosecution evidence and convicted the accused-appellant in a cursory manner. It is therefore prayed that appeal be allowed and accused-appellant be acquitted of the charge. 7. On the other hand, Mr. N.S. Shekhawat and Mrs. Sonia Shandilya, learned Public Prosecutors appearing on behalf of respondent State, support the impugned judgment and argued that the incident had taken place when the accused was sleeping with his deceased wife in the room. Their daughter Bhawna (PW1) was also present there. She has categorically stated that the accused-appellant inflicted 'kulhari' blow on the head of the deceased. On hearing hue and cry, this witness Bhawna woke up. She asked her father i.e. accused appellant not to do so, but he threatened her to keep silence or else she would also be finished. She stated that the accused, after inflicting 'kulhari' blow on the head of deceased, also cut her throat by knife. Earlier also quarrei took place between them. She asked her father i.e. accused appellant not to do so, but he threatened her to keep silence or else she would also be finished. She stated that the accused, after inflicting 'kulhari' blow on the head of deceased, also cut her throat by knife. Earlier also quarrei took place between them. Learned Public Prosecutor argued that even if what is argued by the defence is accepted for the sake of argument that Bhawna (PW-7) was not present in the room at the time the accused-husband and deceased wife were sleeping in the room, in that case also presumption of Section 106 of the Evidence Act could be raised against accused-appellant. The accused-appellant was liable to give explanation as to why and in what circumstances the deceased died and this presumption on being taken to logical conclusion would reach to finding that it was accused-appellant, who murdered his wife Santosh Bai. 8. On hearing learned counsel for accused-appellant, learned Public Prosecutors and perusing the material on record as also the impugned judgment, we find that learned trial court has taken note of the fact that Anil (PW-1) and Anand (PW-3), who are neighbours of the accused-appellant, have not support the prosecution case and have been declared hostile. Aruna (PW-2), who happens to be the daughter of sister of accused-appellant, has also not support the prosecution case and has been declared hostile. Surajmal (PW-4), who is the witness of recovery of blood stained clothes, has not support the prosecution case. Sangeeta (PW-20) and Ranjeeta (PW-21) are daughters of elder brother of accused-appellant and they too have not support the prosecution case. Munshi Lal (PW-5), who is witness of 'panchnama' has not support the prosecution case. But that is not the only evidence to base the conviction of accused-appellant and that the accused was guilty of committing offence. There are more witnesses, whose statements are corroborated by other evidence available on record to prove guilt against the accused-appellant beyond reasonable doubt. Radhey Shyam (PW-6), who is brother of deceased, has stated that his deceased sister used to tell them that the accused-appellant was having illicit relations with his 'bhabhi' Kalabai and owing to this, quarrel used to take place between them. He alleged that his sister has been murdered by accused-appellant. Radhey Shyam (PW-6), who is brother of deceased, has stated that his deceased sister used to tell them that the accused-appellant was having illicit relations with his 'bhabhi' Kalabai and owing to this, quarrel used to take place between them. He alleged that his sister has been murdered by accused-appellant. His sister came to their parents' house about a month before the date of incident, on 'raksha bandhan' festival and at that time, she told that she was being maltreated by accused-appellant. This witness has denied the suggestion that deceased was having any illicit relation with anyone. Lalchand (PW-8) is cousin of deceased. He has stated that one day before the incident, quarrel had taken place between the deceased and accused-appellant. Few days before the incident, the deceased came to her parents' house but thereafter the dispute was resolved between them and deceased was sent to her in-law's house. He also denied the suggestion that deceased had illicit relation with someone else. Roopchand (PW-9) has stated that relations between accused-appellant and deceased were strained for last three years. The appellant used to frequently subject the deceased to beating. He had seen the t dead body of deceased with a cut on her throat and finger. Police had seized 'kulhari' and blood stained clothes of the deceased. Prithviraj (PW-11) has also stated that deceased Santosh used to tell him that appellant used to quarrel with her. Jhamura (PW-12) has stated that he had gone to in-law's place of deceased Santosh and tried to resolve the dispute between them. He has stated that 'kulhari' was recovered by the police from the place of occurrence. 9. Bhawna (PW-7) is the star witness of the prosecution. She happens to be the daughter of deceased and appellant. Although, she was aged about 7-8 years but learned trial court has recorded its satisfaction about her understanding between truth and falsehood and that she was capable of giving statement. This witness being a child, is certainly entitled to some latitude for appreciating her statement. Her statement has to be scrutinized carefully in the face of the aforesaid finding so as to find out whether it receives corroboration from other evidence or not. She has stated that she was sleeping with deceased in the room of appellant in the night of the fateful day. On hearing hue and cry she woke up. Her statement has to be scrutinized carefully in the face of the aforesaid finding so as to find out whether it receives corroboration from other evidence or not. She has stated that she was sleeping with deceased in the room of appellant in the night of the fateful day. On hearing hue and cry she woke up. She stated that appellant inflicted 'kulhari' blow on her deceased mother. She requested the appellant not to do so but he threatened her to keep silence or else she would also be finished. She has stated that appellant inflicted 'kulhari' blow on the head of her deceased mother and cut her throat by use of knife as well. Earlier also she saw quarrel between them. In cross-examination, although she stated that she came from Jhalawar with her maternal uncle and that her maternal uncle and maternal grandfather explained to her about giving of statement in the court, but this fact does not in any manner undermine the veracity of the statement of this child witness. In fact, she has stood the scrutiny of cross-examination when she was asked by the defence that she earlier expressed to the police her ignorance about the incident while giving statement. She stated that, rather she categorically stated to the police that her father i.e. appellant inflicted 'kulhari' blow on the head of deceased. She also stated to the police that she asked her father not to do so but he threatened her to keep silence or else she would also be finished, but she does not know why the police did not record so in her police statement (Exhibit D-2). The police recorded her statement one day after death of deceased and thereafter she stated that police recorded her statement two days after the incident. She stated that she went to Jhalawar after death of her mother. She denied the suggestion that she has given this statement on the asking of her maternal grandfather and maternal uncle and that she did not witness the incident. Though, she was aged about 7-8 years at the time of recording her statement in the court, but she has categorically stated that she saw the appellant inflicting 'kulhari' blow on the head of deceased and she asked the appellant not to do so but he threatened her to keep silence or else she would also be finished. Though, she was aged about 7-8 years at the time of recording her statement in the court, but she has categorically stated that she saw the appellant inflicting 'kulhari' blow on the head of deceased and she asked the appellant not to do so but he threatened her to keep silence or else she would also be finished. Therefore, in the facts of the present case, the argument of learned counsel for accused-appellant that testimony of her statement cannot be relied to convict the accused-appellant, cannot be accepted. 10. Bhawna (PW-7) is not the only witness, on whose statement the trial court has convicted the accused-appellant but the trial court has also relied on other evidence as well to base the conviction of accused-appellant. Dr. Dwarka Lal Meena (PW-13) and Dr. Nitendra Sharma (PW-15) have proved the post-mortem report (Exhibit P-24) of deceased, according to which she had six ante-mortem injuries, five of which were incised wounds and one was lacerated wound and that she died due to excessive bleeding. This was not a natural death. While 'kulhari' was seized by the police from the place of Incident itself vide Exhibit P-19, knife was recovered by the police vide Exhibit P-32 at the instance of the accused appellant. Blood smeared banyan, which the accused-appellant was wearing, was also recovered by the police vide Exhibit P-30. Recovery memo of kulhari' (Exhibit P-19) clearly indicated that the blood stains were found thereon. The blood smeared clothes of the deceased were also recovered vide Exhibit P-20. Place marked with 'A' in the site plan is the room of accused-appellant where he inflicted kulhari' blow on the deceased while she was sleeping and blood was found there. Vide Exhibit P-15 the police recovered blood smeared 'dari', 'gudari' and pillow, which were sealed in a packet and marked with 'A'. Vide Exhibit P-16, the police lifted the blood of deceased Santosh in a piece of paper and kept in a container, which was marked with 'B'. The police also recovered blood smeared 'kulhari' vide Exhibit P-19 and marked with 'C'. Vide Exhibit P-20 the police recovered blood smeared clothes of deceased Santosh, which were one petticoat, one 'sari' and one blouse, and marked the same with 'D'. One sleeveless banyan of accused was also seized by the police vide Exhibit P-30 and marked with 'E'. The police also recovered blood smeared 'kulhari' vide Exhibit P-19 and marked with 'C'. Vide Exhibit P-20 the police recovered blood smeared clothes of deceased Santosh, which were one petticoat, one 'sari' and one blouse, and marked the same with 'D'. One sleeveless banyan of accused was also seized by the police vide Exhibit P-30 and marked with 'E'. Knife was seized vide Exhibit P-32 and marked with 'F. There is an entry of these articles in makhana register maintained by the police, which has been produced on record as Exhibit P-27. Therein it is mentioned that constable Durga Lal was handed over custody of these articles marked with 'A', 'B', 'C', 'D', 'E' and 'F' against clear receipt and also the entry. Jagdish (PW-17) has proved seizure of all the articles and putting of seal on the packets. Trilok Chand (PW-19) was the Malkhana In-charge. He has also proved all these facts. Ram Singh Meena (PW-14), who conducted the investigation of the matter, has proved all these facts especially the fact of all these exhibits and also the fact of all the stages of investigation and the events. He has stated that the police constables have been made witnesses because of non-availability of independent witnesses. He stated that these articles were sent to F.S.L., Kota, through constable Durga Lal, who produced the receipt for depositing those articles with F.S.L., Kota. The forwarding letter (Exhibit P-35) mentioned about six packets which were sent along-with the report. Constable Durga Lal has deposited the said articles with Forensic Science Laboratory, Kota vide receipt No. M-946 dated 25.08.2009. Constable Durga Lal has been examined as PW-16. He has proved all these documents. He has stated that he on that date was posted as Constable at Police Station Aklera and obtained six sealed packets from Mr. Trilok Chand, who was Malkhana in-charge, with letter. He reached the office of S.R on 24.08.2009 and got forwarding letter (Exhibit P-35) and deposited the aforesaid articles in sealed condition with F.S.L. Kota on 25.08.2009 and obtained a receipt thereof. 11. Exhibit P-38 is the report of F.S.L., Kota, which has been admit in evidence as per provisions of Section 293 Cr.PC. He reached the office of S.R on 24.08.2009 and got forwarding letter (Exhibit P-35) and deposited the aforesaid articles in sealed condition with F.S.L. Kota on 25.08.2009 and obtained a receipt thereof. 11. Exhibit P-38 is the report of F.S.L., Kota, which has been admit in evidence as per provisions of Section 293 Cr.PC. Perusal of this report indicates that packet marked with 'A' contained Dari', pillow cover and 'Gudari', packet marked with 'B' contained blood smeared soil having human blood of 'B' group, packet marked with 'C' contained 'kulhari' packet marked with 'D' contained petticoat (having human blood of 'B' group), blouse and 'Sari' (having blood of B' group), packet marked with E' contained 'banyan' having human blood of 'B' group and packet marked with F contained 'Chaku' (churra) having human blood of 'B' group. The packet A contained three articles i.e. Dari, Pillow cover and Gudari were found to have been stained with human blood of 'B' group, but the blood group of blood found on Dari remained inconclusive as it was not sufficient Thus, the blood group of blood which was found on Dari, Soil, Kulhari (sic.) and Blouse, was of human (origin), though grouping was not possible due to insufficiency. 12. Apart from what is noted above, it is clear from the testimony of several witnesses that there was strained relationship between appellant and deceased, owing to allegation that appellant had illicit relation with his Bhabhi'. Testimony of Bhawna (PW-7), the recovery of knife, 'kulhari' from the place of occurrence and presence of blood having B group on the knife as also on banyan of accused, which was the blood group of deceased, the offence against accused-appellant has rightly been held proved beyond reasonable doubt by learned trial court. The judgments of the Supreme Court cited by learned counsel for appellants, were also cited before the learned trial court and were not found applicable to the facts of the present case and in our view rightly so. In this case, Bhawna (PW-7), the daughter of appellant and deceased, was present at the place of occurrence and narrated the incident in her court statement. Her testimony cannot be ignored just because she came from the house of her maternal uncle. In this case, Bhawna (PW-7), the daughter of appellant and deceased, was present at the place of occurrence and narrated the incident in her court statement. Her testimony cannot be ignored just because she came from the house of her maternal uncle. On the fateful day, when her father committed murder of her mother she was sleeping in the same room where incident took place and after his arrest, there was nothing unnatural if she was taken by her maternal grandfather and maternal uncle to Jhalawar to live with them. Merely because she came from there to give her court statement, it cannot be taken that she has given wrong statement before the court. She has stood the scrutiny of cross-examination. Her testimony also cannot be disbelieved only because her police statement was recorded two days after the date of occurrence. Delay of two days cannot be said to be fatal to the testimony of her statement, as it could not be possible to record the statement of this witness of tender age, whose mother was murdered by her own father in her gaze, particularly when she has been subjected to lengthy cross-examination as to the manner of incident 13. In view of the above, we do not find any infirmity in the impugned judgment passed by learned trial court. The appeal, being devoid of merit, is hereby dismissed.