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2018 DIGILAW 160 (RAJ)

PAPPU KHAN v. STATE OF RAJASTHAN

2018-01-12

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

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JUDGMENT : Goverdhan Bardhar, J. The instant criminal appeal has been filed by the accused appellant against the Judgment of conviction and sentence dated 29.04.2011 passed by learned Addl. Sessions Judge, Fast Track, Tonk (Rajasthan) in Sessions Cases No. 39/2010 (52/2010) whereby the learned trial court has convicted and sentenced the accused appellant under section 302 IPC to life imprisonment and a fine of Rs. 20,000/-, in default of payment of fine the accused appellant was to further undergo rigorous imprisonment of two years. 2. Facts of the case briefly stated are that the complainant Sabir Hussain (PW14) submitted a written report (Ex.P21) to S.H.O., Police Station Kotwali, Tonk at 1:00 P.M on 25.5.2010 narrating that his sister's marriage was solemnized with Pappu Khan s/o Faqir Mohammad in the year 2000. He alleged that from the very starting behavior of Pappu and his family members with his sister was not good. She was subjected to harassment and cruelty in connection with demand of dowry. Moreover, about three years ago, Pappu Khan and her in-laws gave her beating in connection with demand of dowry and she was forcefully moved out of the matrimonial home. For that incident an FIR was also lodged with Police Station Kotwali. Moreover, an application under section 125 Cr.P.C., 1973 was also filed thereafter and both the matters are pending in the concerned Court. On 23.05.2010 at about 10:00 P.M Pappu Khan and his family members came to take his sister to their house. They were counselled by the elder persons and it was assured that her sister Seema would be well treated, hence they agreed and allowed her to go along-with Pappu Khan. Pappu took Seema and all four children along-with luggage and further assured that he would be coming to the Court next day on 24.05.2010 to submit compromise in writing. When on 24.05.2010 Pappu did not come to the Court, the informant made inquiries. Then Pappu told that he would surely come on the next day. The complainant further alleged that in the night at about 10-10:30 P.M. due to certain anxiety he decided to go to his sister's place and on the way his 'Bhanja' also met him at Ghanta Ghar. When they reached at Seema's in-laws place, they came to know that Pappu and Seema were living on rent, in the nearby house of Sunari. When they reached at Seema's in-laws place, they came to know that Pappu and Seema were living on rent, in the nearby house of Sunari. When he knocked the door, he heard certain loud noises from inside. They pushed the door forcefully and entered in the room and found that Pappu, Salim, Sahadut and Nafis were beating Seema. Pappu was having a knife in his hand and he was uninterruptedly causing knife blows to her. His sister fall down and started bleeding. All these persons then ran away from there. His sister was taken to the hospital with the help of police persons where she was declared brought dead. Thus, after hatching conspiracy Pappu, Salim, Sahadat and Nafis have committed the murder of his sister. 3. On recording the said written report, a case bearing No. 72/2010 (Ex.P30) for the offence under Section 302 IPC was registered. After completion of investigation, the police submitted charge-sheet against accused appellant under section 302 IPC in the Court of Judicial Magistrate, Tonk. After taking cognizance in the matter, the case was committed to the Court of Sessions Judge, Tonk from where the case was transferred to the learned trial court. The learned trial court thereafter framed the charge against the accused appellant under section 302 IPC, who denied the charges and claimed to be tried. The prosecution in support of its case got the statements of seventeen witnesses recorded and thirty three documents exhibited. Thereafter, the accused appellant was examined under section 313 Cr.P.C., 1973 In defence, the accused appellant produced two witnesses DW1-Sayyed Ahmed and DW2-Mohd. Wahid. The learned trial court after hearing the final arguments, convicted and sentenced the accused appellant for the charges levelled against him vide impugned judgment dated 29.04.2011. The accused appellant aggrieved and dissatisfied with the impugned judgment of conviction and sentence has preferred instant criminal appeal. 4. Mr. Pratap Singh Sirohi, learned counsel appearing for the accused appellant has argued that the prosecution has failed to prove guilt of the accused appellant beyond reasonable doubt. He has been convicted contrary to the evidence available on record. Learned counsel argued that findings recorded by the learned trial court for convicting and sentencing the accused appellant are perverse and erroneous. The learned trial court has relied on the evidence of Seemaila (PW13), daughter of the deceased and the accused appellant, who is aged only 7 years. He has been convicted contrary to the evidence available on record. Learned counsel argued that findings recorded by the learned trial court for convicting and sentencing the accused appellant are perverse and erroneous. The learned trial court has relied on the evidence of Seemaila (PW13), daughter of the deceased and the accused appellant, who is aged only 7 years. There is no credible evidence available on record to prove guilt of the accused appellant. Learned counsel further argued that Seemaila (PW13) is minor and was under the influence of the father and mother of the deceased. She being tutored by them cannot be relied. There is no cogent and reasonable evidence on record. No reliance can be placed on the testimony of Seemaila (PW13). Learned counsel for the accused appellant argued that the findings arrived by the learned trial court that it is not appeared by the statement of Seemaila (PW13) she was tutored by any person is contrary to the facts and circumstances of the case and a man of general prudence may gather from the evidence of Seemaila (PW13) that she was tutored by in-laws of the appellant and her evidence could not be considered as it is not reliable. Learned counsel argued that by arriving at such finding the learned trial court left the material evidence to be considered and convicted the appellant on the exterior material which have resulted failure of justice in favour of the appellant. Learned counsel argued that all the circumstances of read together only innocence of the appellant is proved. It is argued that the learned trial court failed to appreciate that Seemaila (PW13) was tutored witness, who came to the witness box from the house of in-laws of the appellant. Her statement could not be relied. 5. Learned Public Prosecutor appearing for the State opposed the appeal and supported the impugned Judgment of conviction passed by the learned trial court. 6. We have considered the submissions made by learned counsel for the appellant and learned Public Prosecutor and carefully scanned the material on record, exhibits and the deposition of witnesses. 7. As per the case of the prosecution, the eyewitnesses of the alleged incident are PW14-Sabir Hussain, complainant, who is brother of the deceased, as also PW13-Seemaila, daughter of the deceased. We have considered the submissions made by learned counsel for the appellant and learned Public Prosecutor and carefully scanned the material on record, exhibits and the deposition of witnesses. 7. As per the case of the prosecution, the eyewitnesses of the alleged incident are PW14-Sabir Hussain, complainant, who is brother of the deceased, as also PW13-Seemaila, daughter of the deceased. Informant PW14-Sabir Hussain in statement recorded before the Court affirmed the contents made in the written report (Ex.P21) on the basis of which FIR (Ex.P30) was got registered. PW14-Sabir Hussain in his statement deposed that at the time of alleged incident PW13-Seemaila was also present, Pappu Khan was having knife in his hand and he was repeatedly inflicting blows. PW15-Dr. Jai Prakash Narang, Medical Jurist, Sahadat Dispensary, Tonk deposed that autopsy of dead body was conducted on 25.5.2010 at 9:15 AM. He further deposed that the deceased was having 31 incised wounds on her person, which were of sharp edged weapon and were ante-mortem in nature. The cause of death of deceased Seema was due to hemorrhagic shock and shock was due to heart and lung (Rt) infections. 8. As per postmortem report Ex. P/28, following injuries were found on the body of deceased Smt. Seema :- 1. One incised wound= 3cm x 1cm Muscled deep= dorsum of left hand at 1st metacarpo phontral joint. 2. One incised wound= 2cm x 1cm x bone deep= Palmer aspect of metacarpal phalangeal joint of left hand. 3. One incised wound= 4cm x cm Muscled deep= dorsum of 2nd metacarpo phontral joint of left hand. 4. One incised wound= 4cm x 2cm x MD = on lower 1/3rd radial side of left forearm. 5. One incised wound = 2cm x cm x sub cutetus = ext. aspect of left forearm. 6. One incised wound = 1cm x cm x MD=mid of medial aspect of left arm. 7. One incised wound= 3cm x 3cm x MD=posterior aspect of mid of left calf. 8. One incised wound = 2cm x 3cm x MD= Near I No. 7 9. One incised wound= 1cm x cm x MD= upper 1/3rd ulnar side of forearm. 10. One incised wound= 4cm x 2cm x MD= right forearm ulnar side of Rt forearm (lower 1/3rd of). 11. One incised wound = 1cm x cm x cm = ulner side of Rt wrist. 12. One incised wound= 1cm x cm x MD= upper 1/3rd ulnar side of forearm. 10. One incised wound= 4cm x 2cm x MD= right forearm ulnar side of Rt forearm (lower 1/3rd of). 11. One incised wound = 1cm x cm x cm = ulner side of Rt wrist. 12. One incised wound= 8cm x 4cm x MD= upper 1/3rd of left side of right forearm. 13. One incised wound= 1cm x 1cm x Bone deep = lower 1/3rd of ant. border of Rt leg. 14. One incised wound= 2cm x 1cm x MD=medial aspect of lower 1/3rd of rt. Thigh. 15. One incised wound= cm x cm cm= ant. aspect of mid of rt. Thigh. 16. One incised wound = 1cm x cm x cm=mid of post aspect of Rt thigh. 17. One incised wound = 1cm x cm x cm=medial aspect of right knee. 18. One incised wound = 5cm x 1cmx BD= below chin. 19. One incised wound = cm x cm x cm x cm=: Left midclavicular line on 3rd inter coshed space of left side of chest. 20. One Incised wound= 1cm x cm x MD= left clavicular line on 5th inter coshed space on left side of chest. 21. One Incised wound= 3cm x 1cm x penitute to rt. ventricle of heart= lateral margin of sternum at 6th inter coshed space, left side of chest. 22. One Incised wound= 1cm x cm x MD= left side of midsternal line, egi gestrum anterior abdominal wall. 23. One incised wound= 1cm x cm x MD= Right side of midstemal line, egi gestrum ant. abdominal wall. 24. One incised wound= 1cm x cm x MD=just above umbilicu. 25. One incised wound= cm x cm x cm=left mid axillary line on 10th inter coshed space, chest wall. 26. One incised wound= 1cm x cm x MD=just right side of sternum on 8th inter coshed space of chest. 27. One incised wound= cm x cm x cm=right side of sternum on 8th inter costo space of chest. 28. One incised wound= 4cm x cm x pentitute to middle lobe of right lung =right midclavicular line of 6th inter coshed space of chest. 29. One incised wound= 1cm x cm x bonedeep= right ant auxiliary line in 7th inter coshed space. 30. One incised wound= cm x cm x cm= rt. mid line on rt. coshed margin of chest. 31. 29. One incised wound= 1cm x cm x bonedeep= right ant auxiliary line in 7th inter coshed space. 30. One incised wound= cm x cm x cm= rt. mid line on rt. coshed margin of chest. 31. One incised wound= 4cm x cm x MD= rt. Mid auxiliary of line on 4th inter coshed space of chest." 9. Sabir Hussain (PW14) has stated that accused used to beat and abuse the deceased earlier also. Moreover, she was once driven out of her matrimonial home along-with her children. At that time, a complaint for the offence under sections 498A and 406 IPC was lodged. He has further narrated the fact that only after the appellant came to them and gave assurance that he would not repeat the conduct, they persuaded the deceased to go back with him. PW13-Seemaila, daughter of deceased, has also in her examination-in-chief deposed that her father, who was present in Court, had killed her mother. The incident took place in night and she witnessed the incident. Her mother was killed by her father, who inflicted repeated knife blows on her body. She was now residing with her 'Nani' (maternal grand mother). At the time of occurrence, she shouted and raised hue and cry "not to kill Mummy". Blood was oozing out from the body of her mother. In cross-examination, she again narrated whatever she witnessed. This witness further deposed that no one had pressurized her. Since Seemaila (PW13) happens to be the daughter of accused appellant, her presence in the house is completely natural. The incident occurred within four walls of the house of accused appellant. There is no reason to discard her testimony. Thus the statement of PW13-Seemaila can not be held to be untrustworthy. As per section 118 of the Indian Evidence Act, every person is competent as a witness unless the Court considers that he is prevented from considering the question put to him or from giving reasonable reason because of the factor of age i.e. tender or extreme age. This provision is based on the presumption that children could be easily tutored and therefore can be made a puppet in the hands of elders. In this regard, the law does not fix any particular age as to the competency of child witness or the age when they can be presumed to have attained the requisite degree of intelligence or knowledge. 10. In this regard, the law does not fix any particular age as to the competency of child witness or the age when they can be presumed to have attained the requisite degree of intelligence or knowledge. 10. Before adverting to examine the testimony of child witnesses, let us examine the law laid down by the Supreme Court in catena of judgments as to the manner in which their evidence has to be appreciated. We may, in this connection, notice judgment of the Supreme Court in State of Madhya Pradesh v. Ramesh & Another, (2011) 4 SCC 786 wherein the Apex Court, after revisiting its previous judgments, laid down the law as to how the evidence of a child witness should be assessed. Para 14 of the judgment is worth reproduction, which is as under : "14. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition." The Supreme Court in Gagan Kanojia & Another v. State of Punjab, (2006) 13 SCC 516 held that part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. The Supreme Court in State of Uttar Pradesh v. Krishna Master & Others, (2010) 12 SCC 324 held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. The Supreme Court in State of Uttar Pradesh v. Krishna Master & Others, (2010) 12 SCC 324 held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature. The Supreme Court in Himmat Sukhadeo Wahurwagh & Others v. State of Maharashtra, (2009) 6 SCC 712 held that The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. The Supreme Court in Nivrutti Pandurang Kokate & Others v. State of Maharashtra, (2008) 12 SCC 565 while dealing with the child witness has observed as under : "10. 6....... 7......... A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. The Supreme Court in Nivrutti Pandurang Kokate & Others v. State of Maharashtra, (2008) 12 SCC 565 while dealing with the child witness has observed as under : "10. 6....... 7......... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness." The Supreme Court in Panchhi & Others v. State of U.P., (1998) 7 SCC 177 while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that, "the evidence of a child witness would always stand irretrievably stigmatised. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. However, it is more a rule of practical wisdom than of law. It cannot be held that, "the evidence of a child witness would always stand irretrievably stigmatised. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring" In Mangoo and Another v. State of Madhya Pradesh, AIR 1995 SC 959 , the Supreme Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring. In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54 , the Supreme Court examined the provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise. The Supreme Court further held as under : ".....It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate...." The Supreme Court in Raj Kumar (supra) also followed its judgment in State of Madhya Pradesh v. Ramesh & Another (supra) and observed that the court has to form an opinion from circumstances as to whether the witness is able to understand the duty of speaking the truth and further in a case of child witness, the court has to ascertain that the witness might have not been tutored. Evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him. Trial court must ascertain as to whether a child is able to discern between right or wrong and it may be ascertained only by putting questions to him. 11. PW17-Nirmal Singh, Circle Officer in his statement deposed that Gopal Lal Verma was Investigating Officer in the case, who investigated into the matter but he was reported to have died. PW17-Nirmal Singh, Circle Officer supported the averments made in the charge-sheet. DW1-Sayeed Ahmed and DW2-Mohd. Wahid are the interested witnesses of the accused appellant and their testimony is not reliable. The accused appellant failed to give plausible explanation under section 313 Cr.P.C., 1973 rather he admits his presence at the place of occurrence. Statements of PW14-Sabbir Hussain and PW13-Seemaila can be said to be trustworthy. In their statements, they specifically stated the manner in which incident of attack took place in which Seema died. The testimony of Sabir Hussain (PW14) and Seemaila (PW13) is corroborated by the postmortem report (Ex.P28) which reveals that there were total 31 incised wounds on the body of deceased. The cause of death was opined to be due to hemorrhagic shock and due to heart and lung (Rt) infections. 12. The Hon'ble Supreme Court, in the matter of Sher Singh v. Haryana ( AIR 2011 SC 373 ), observed that the injuries found on the dead body of the deceased shows the intention of the accused. In the case in hand, postmortem report (Ex.P28) shows that there were 31 incised wounds on the person of the deceased with knife. This clearly proves the intention of the appellant-accused was to cause death of his wife. 13. In the case in hand, postmortem report (Ex.P28) shows that there were 31 incised wounds on the person of the deceased with knife. This clearly proves the intention of the appellant-accused was to cause death of his wife. 13. From the facts narrated herein above, it stands conclusively proved that Seema was murdered in his rented room by the accused appellant. Since occurrence had taken place in the room of the appellant (husband), a duty is cast upon the husband to explain as to how his wife had died, especially when this is being a special circumstance in the knowledge of the husband. It is for the appellant to disclose as to how his wife had died in a rental room where he was residing along-with the deceased. However plea taken by the appellant in his statement recorded under Section 313 Cr.P.C., 1973 is of no help to absolve him from his guilt. When an incriminating circumstance is put to the accused, yet if he offers either no explanation or offers an explanation which is found to be untrue then same becomes an additional circumstance against him. 14. In the case of Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 , the Hon'ble Apex Court in para 15 has held ad-infra :- 15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a 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 an accused to offer any explanation." Recently, the Hon'ble Supreme Court in the case of State of Rajasthan v. Thakur Singh, 2014 Cri. L.J. 4047, had observed as under :- "Discussion and conclusion 14. L.J. 4047, had observed as under :- "Discussion and conclusion 14. Questioning the decision of the High Court acquitting Thakur Singh, the State of Rajasthan has preferred this appeal." 15. We find that the High Court has not at all considered the provisions of Section 106 of the Evidence Act, 1872. This section provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. 106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 16. Way back in Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199 , this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said : "This [Section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not." 17. In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 , this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 , this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said : "Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime." 18. Reliance was placed by this Court on Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 , in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under section 313 of the Code of Criminal Procedure, 1973. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife. 19. Similarly, in Dnyaneshwar v. State of Maharashtra (2007) 10 SCC 445 , this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife. 20. 20. In Jagdish v. State of Madhya Pradesh, (2009) 9 SCC 495 , this Court observed as follows : "It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt." 21. More recently, in Gian Chand v. State of Haryana, (2013) 14 SCC 420 , a large number of decisions of this Court were referred to and the interpretation given to Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. One of the decisions cited in Gian Chand is that of State of West Bengal v. Mir Mohammad Omar, (2000) 8 SCC 382 which gives a rather telling example explaining the principle behind Section 106 of the Evidence Act in the following words : "During arguments we put a question to learned Senior Counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise." 22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts. 23. Applying this principle to the facts of the case, since Dhapu Kunwar died an unnatural death in the room occupied by her and Thakur Singh, the cause of the unnatural death was known to Thakur Singh. There is no evidence that anybody else had entered their room or could have entered their room. 23. Applying this principle to the facts of the case, since Dhapu Kunwar died an unnatural death in the room occupied by her and Thakur Singh, the cause of the unnatural death was known to Thakur Singh. There is no evidence that anybody else had entered their room or could have entered their room. Thakur Singh did not set up any case that he was not in their room or not in the vicinity of their room while the incident occurred nor did he set up any case that some other person entered the room and caused the unnatural death of his wife. The facts relevant to the cause of Dhapu Kunwar's death being known only to Thakur Singh, yet he chose not to disclose them or to explain them. The principle laid down in Section 106 of the Evidence Act is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that Dhapu Kunwar was murdered by Thakur Singh. 24. It is not that Thakur Singh was obliged to prove his innocence or prove that he had not committed any offence. All that was required of Thakur Singh was to explain the unusual situation, namely, of the unnatural death of his wife in their room, but he made no attempt to do" 15. The similar view was also expressed by the Hon'ble Supreme Court in the case of State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 , and His Lordship has observed as under :- 17. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated In Re. Naina Mohd. AIR 1960 Mad 218 . There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt." 16. In view of the above observations, we find that the prosecution has proved that the accused appellant has caused death of the deceased, by adducing cogent and reliable evidence, beyond all reasonable doubts. 17. In the result, the instant criminal appeal filed by the accused appellant is bereft of merit and accordingly stands dismissed. The Judgment of conviction and sentence dated 29.04.2011 passed by learned Addl. Sessions Judge, Fast Track, Tonk (Rajasthan) in Sessions Cases No. 39/2010 (52/2010) is affirmed.