JUDGMENT : J.B.PARDIWALA, J. 1. The present Appeal is at the instance of a convict-accused for the offence punishable under Section 302 of the Indian Penal Code and is directed against the order of conviction and sentence dated 30th July 2018 passed by the 5th Additional Sessions Judge, Anjar, District Kutch, in the Sessions Case No.87 of 2015 (Old Case No.54 of 2012). 2. By the aforesaid order, the learned Additional Sessions Judge found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code and consequently sentenced him to suffer life imprisonment with fine of Rs.5,000=00 and in default of payment of fine, to undergo further simple imprisonment for a period of six months. The trial court, however, acquitted the appellant of the offence punishable under Section 323 of the Indian Penal Code. CASE OF THE PROSECUTION : 3. The deceased was married to the accused-appellant. According to the case of the prosecution, the marital life of the accused and the deceased was not happy. The accused was unhappy with the birth of the fourth child just couple of days before the date of the incident. The accused, along with his wife, i.e. the deceased, and the children were residing in a small hut put up in the agricultural farm. The accused also used to frequently pick up quarrels with the deceased. The accused also had a doubt as regards the fidelity of his wife and also with regard to the paternity of the fourth child. According to the case of the prosecution, on account of disturbed marital life, the accused is alleged to have committed murder of his wife inside their hut by inflicting injuries with a scythe ('dharia'). It is the case of the prosecution that the incident occurred at around 10:30 am. on 28th May 2012. It is also the case of the prosecution that at the time of the incident, the family members of the accused were present as they all were residing next to the hut of the accused and they all came to know that the accused had killed his wife. On the very same day, i.e. on 28th May 2012, the father of the accused herein, i.e. the PW13 Meghabhai Kumbhabhai Koli, lodged the FIR at 21:40 hours at the Bhimasar Police Station, Camp Rapar CHC Hospital, Rapar. On the very same day, i.e. on 28th May 2012, the father of the accused herein, i.e. the PW13 Meghabhai Kumbhabhai Koli, lodged the FIR at 21:40 hours at the Bhimasar Police Station, Camp Rapar CHC Hospital, Rapar. Although the PW13 as the first informant turned hostile, yet having admitted his thumb impression on the FIR, the same was admitted in the evidence at Exh.36. The FIR (Exh.36) lodged by the PW13 is reproduced herein below : “Date : 28/05/12 My name is Meghabhai Kumbhabhai Koli (Raghani), Aged - 55 yrs, occupation - farming, residing at - Bhutakiya Manasanga Vadi Area, Rapar, District Kutch, Mobile No.9978002342. On being personally asked, I state the facts of my complaint that I live at the above mentioned address along with my family and I am doing farming on my own land. I have seven daughters and two sons. Among them Babiben is the eldest one and her marital home is at Kanmer village. Bharat is younger than Babiben and has been married to Kesarben D/o Karshan Gowa Koli of Santalpur Village 12 years ago as per social customs. He has four sons out of the said wedlock. The youngest one is seven days old. Sitaben and Soniben are younger to Bharat and they both have been married with the brothers-in-law of Bharat. Shantiben, Daliben, Bhanuben are younger to them. The youngest is Ramesh. All these four are unmarried and we all live together in a joint family. Three sons of Bharat were born earlier and the fourth son was born seven days ago. Since then, my son Bharat did not use to talk with his wife in proper manner. After the birth of the fourth son, he seemed to be in worry and he also used to pick up quarrel with his wife Kesar. As there was a ritual of 'Chhaththi' yesterday, the mother-in-law of Bharat, namely Galalben, Kesarben's aunt, whose name is not known, and my daughter Babiben Bhagu Koli, residing at Kanmer, etc. had come. In the morning, the mother-in-law of Bharat and other persons had gone. Thereafter, at around 10 O'clock in the morning, I was resting on the cot in front of the hut in my farm, and my daughter Babiben, my wife and my other daughters were taking the meal. Bharat lives in a hut constructed behind my hut. had come. In the morning, the mother-in-law of Bharat and other persons had gone. Thereafter, at around 10 O'clock in the morning, I was resting on the cot in front of the hut in my farm, and my daughter Babiben, my wife and my other daughters were taking the meal. Bharat lives in a hut constructed behind my hut. At around 10:30 hours, Bharat and his wife Kesarben and their children were in the hut. At that time, as there were shouts of the children, I along with my wife Hiraben, daughters Babiben, Shantiben, Daliben and my brother Manjibhai all rushed and went into the hut of Bharat and saw Kesar lying on the ground and blood was oozing from her neck. Bharat had a scythe in his hand. We took away the scythe. Kesar was struggling for life. As blows of scythe were inflicted on her neck, one Rabari, a jeep driver from Bhutakiya village, whose name I do not know, was telephoned in order to take Kesarben to the hospital. Gokal Rajput, who runs a shop in Bhutakiya village, sent the aforesaid jeep driver to our field. Rabari came to our field with a jeep and Kesarben was put inside jeep. Thereafter, I, my wife and daughter Shanti took her to the Goswami’s Hospital at Rapar. She died before the doctor could treat her. Thereafter, as my daughter-in-law had died, Dr. Goswami informed about the same to the Aadesar Police Station. Thereafter, we took the dead body of Kesar to Government Hospital at Rapar and kept the body in the post-mortem room. The said incident took place in the hut of Bharat in our field at about 10:30 hours. My wife Hira also sustained normal injuries during the said incident. My son Bharat had been under stress since the birth of his fourth son. He had been having quarrels with his wife since the birth of the son. He suspected his wife in connection with the birth of the fourth son. Today, he quarreled with his wife and inflicted blows of scythe on her neck, cheek and ear and caused grievous hurt due to which Kesar died. Therefore, it is my complaint to take legal action against my son Bharat. Aforesaid complaint as dictated by me is read over to me and the same is true and correct, I put my thumb impression hereunder. Therefore, it is my complaint to take legal action against my son Bharat. Aforesaid complaint as dictated by me is read over to me and the same is true and correct, I put my thumb impression hereunder. Before me, sd/- illegible PSI, Bhimasar Police Station (Left-hand thumb (Camp Rapar CHC Hospital Rapar)” impression of Megha Kumbha Koli) 4. On the strength of the FIR lodged by the father of the accused, the investigation commenced. The inquest panchnama (Exh.15) was drawn in presence of the two panch witnesses. The dead body of the deceased was sent for the postmortem examination and the postmortem revealed that the deceased had sustained multiple injuries on her neck. The cause of death assigned in the postmortem report (Exh.59) was cardiorespiratory failure on account of the multiple injuries leading to hypovolemic shock. The scene of offence panchnama (Exh.11) was drawn in presence of the two panch witnesses. The clothes of the deceased and the blood sample were collected at the time of the postmortem by drawing the panchnama (Exh.33) in presence of the two panch witnesses. The accused came to be arrested on 29th May 2012 and the panchnama (Exh.21) of the person of the accused was drawn in presence of the two panch witnesses. The map of the place of the occurrence (Exh.67) was drawn on 11th July 2012. After the arrest of the accused, a discovery panchnama (Exh.19) was drawn in presence of the two panch witnesses. The discovery panchnama (Exh.19) is with regard to the discovery of the weapon of offence at the instance of the accused. The clothes of the deceased as well as the clothes of the accused along with the weapon of offence and other articles were sent to the Forensic Science Laboratory for chemical analysis. According to the serological test report (Exh.91), human blood of the blood group 'B' was detected on the muddamal article scythe ('dharia'). The blood sample of the accused drawn in the course of the investigation and sent to the FSL reveals that the blood group of the accused is 'O'. The blood group of the deceased is 'B+'. 5. Finally, a charge-sheet was filed against the accused in the court of the learned JMFC, Rapar, Kutch. As the case was exclusively triable by the Sessions Court, the JMFC committed the case to the Sessions Court under Section 209 of the Code of Criminal Procedure. The blood group of the deceased is 'B+'. 5. Finally, a charge-sheet was filed against the accused in the court of the learned JMFC, Rapar, Kutch. As the case was exclusively triable by the Sessions Court, the JMFC committed the case to the Sessions Court under Section 209 of the Code of Criminal Procedure. 6. The Sessions Court framed charge against the accused at Exh.6 and the statement of the accused was recorded. The accused did not admit the charge and claimed to be tried. 7. The prosecution adduced the following oral evidence in support of his case : Sr. No. Name/ Description Status Exhibit Date 1 Surabhai Karsanbhai Rajput Panch Witness 10 03.03.14 2 Rana Ramsang Rajput Panch Witness 12 03.03.14 3 Sharifaben Bhikhubhai Panch Witness 14 19.11.14 4 Ashwinbhai Bharatsinh Jadeja Panch Witness 18 15.06.15 5 Jogabhai Sujabhai Gohil Panch Witness 20 17.12.15 6. Amad Suleman Hingoraja Panch Witness 22 31.12.15 7 Samta Sura Rajput Panch Witness 25 25.03.16 8 Narubhai Gugabhai Koli Witness 27 25.05.16 9. Ramjibhai Parbatbhai Hatiyani (Patel) Witness 28 21.05.16 10 Nanjibhai Raghubhai Hatiyani (Patel) Witness 30 21.05.16 11 Karimbhai Amadbhai Hingoraja Panch Witness 32 09.09.16 12 Mukeshbhai Laxmanbhai Bhatti Panch Witness 34 09.09.16 13. Meghabhai Kumbhabhai Koli Complainant 35 07.10.16 14. Muljibhai Ramjibhai Parmar Panch Witness 38 17.03.17 15. Velabhai Dhingabhai Parmar (Koli) Panch Witness 39 17.03.17 16. Lavjibhai Sangrambhai Koli Witness 40 17.03.17 17. Karshanbhai Govabhai Thakor Witness 41 09.05.17 18. Meghabhai Kumbhabhai Koli Complainant 35 07.10.16 14. Muljibhai Ramjibhai Parmar Panch Witness 38 17.03.17 15. Velabhai Dhingabhai Parmar (Koli) Panch Witness 39 17.03.17 16. Lavjibhai Sangrambhai Koli Witness 40 17.03.17 17. Karshanbhai Govabhai Thakor Witness 41 09.05.17 18. Babiben Bhagubhai Koli Witness 42 20.05.17 19 Dayaben Bhikhabhai Koli Witness 43 20.05.17 20 Manjibhai Bhurabhai Koli Witness 45 16.06.17 21 Shantiben Megha Koli Witness 46 16.06.17 22 Hiraben Megha Koli Witness 47 16.06.17 23 Galalben Karshanbhai Koli Witness 48 01.08.17 24 Sitaben Ramsang Koli Witness 49 01.08.17 25 Nanjibhai Karshanbhai Thakor Witness 50 01.08.17 26 Gokarbhai Kumbhabhai Makwana Witness 51 20.09.17 27 Vejiben Rudabhai Koli Witness 53 03.10.17 28 Sonalben Nanjibhai Thakor Witness 54 03.10.17 29 Dineshbhai Saburbhai Parmar Police Witness 55 11.10.17 30 Mukeshbhai Kashirambhai Joshi Police Witness 56 12.01.18 31 Dr.Arunkumar Vishnudevsing Kurmi Doctor Witness 57 12.01.18 31.01.18 32 Ramshibhai Karshanbhai Koli Witness 61 14.02.18 33 Dr.Devendragiri Kirtigiri Goswami Doctor Witness 62 27.02.18 34 Vijeshbhai Babubhai Pargi Witness (Talati Mantri) 64 03.04.18 35 Rameshbhai Danabhai Parmar Police Witness (P.S.O.) 68 03.04.18 36 Dalsing Popatbhai Kanani Police Witness 71 13.04.18 37 Maheshkumar Jivrajbhai Chaudhari Police Witness 77 25.06.18 11.07.18 38 Manjibhai Mangalji Damor Police Witness 86 30.6.18 39 Keshabhai Nanjibhai Pandya Police Witness (P.S.O.) 88 30.06.18 8. The following pieces of documentary evidence were adduced by the prosecution : Sr. No. Name/ Description Exhibit Date 1 Panchnama of the place 11 29.05.12 2 Inquest Panchnama 15 28.05.12 3 Discovery Panchnama 19 30.05.12 4 Panchnama of arrest of the accused 21 29.05.12 5 Panchnama of taking medical samples of the accused 29 30.05.12 6 Panchnama of recovery of the clothes and blood samples of the deceased Kesarben at the time of postmortem. 33 16.06.12 7 Original complaint along with Form No.154 36 28.05.12 8 Yadi for postmortem of the deadbody 58 28.05.12 9 Postmortem Report 59 28.05.12 10 Cause of Death Certificate 60 23.06.12 11 Yadi for providing Treatment Certificate 63 11.08.12 12 Yadi sent to the Talati-cum-Mantri, Bhutakiya Gram Panchayat, for preparing map of the scene of offence 65 11.07.12 13 Yadi written to the P.S.I. Bhimasar Police Station along with the map of scene of offence prepared by the Talati-cum-Mantri, Bhutakiya Gram Panchayat. 66 11.07.12 14 Original map of the local place 67 11.07.12 15 Extract of Death Register No.5/12 and Yadi for investigation. 66 11.07.12 14 Original map of the local place 67 11.07.12 15 Extract of Death Register No.5/12 and Yadi for investigation. 69 28.05.12 16 Yadi for inviting the Executive Magistrate, Mamlatdar Office, Rapar, to fill up the Inquest Panchnama of the deceased lady. 72 ----- 17 Yadi for making investigation of the crime 78 28.05.12 18 Outward entry along with the certificate made to the Deputy Director, Forensic Science Laboratory, Rajkot, for the examination of the muddamal. 79 26.06.12 19 Receipt confirming having received the muddamal by the F.S.L., Rajkot. 80 27.06.12 20 Yadi for having sent the blood sample of the accused after the medical examination by the Medical Officer, Government Hospital. 81 30.05.12 20 21 Yadi for handing over the investigation. 87 28.05.12 22 Original Report of Shri R.M.Darji, Scientific Officer, F.S.L. - Mobile Van 90 ----- 23 Muddamal examination report of Shri J.A.Shah, Assistant Director, Forensic Science Laboratory, Rajkot, along with Serological examination report of Shri P.P.Makwana, Scientific Officer, Serology Department, F.S.L., Rajkot. 91 29.08.12 9. After completion of the oral as well as the documentary evidence of the prosecution, the statement of the accused under Section 313 of the Code was recorded, in which the accused stated that the complaint was a false one and he has been falsely implicated in the alleged crime. 10. At the conclusion of the trial, the learned trial Judge convicted the accused for the offence punishable under Section 302 of the Indian Penal Code and sentenced him as stated herein before. 11. Being dissatisfied, the accused-appellant has come up with the present Appeal. CONTENTIONS ON BEHALF OF THE ACCUSED-APPELLANT : 12. Mr.Jigar Gadhavi, the learned counsel appearing for the appellant, vehemently submitted that the trial court committed a serious error in holding the accused guilty of the offence of murder of his wife. He would submit that in the course of the trial, the prosecution failed to adduce any evidence to connect the accused with the alleged crime. He would submit that all the prosecution witnesses turned hostile. He submitted that even if it is believed that the incident had occurred inside the hut, that by itself is not sufficient to shift the entire onus upon the accused to explain as to what had happened to his wife. He would submit that all the prosecution witnesses turned hostile. He submitted that even if it is believed that the incident had occurred inside the hut, that by itself is not sufficient to shift the entire onus upon the accused to explain as to what had happened to his wife. To put it in other words, it is submitted that the trial court committed a serious error in invoking Section 106 of the Evidence Act without the prosecution leading any evidence worth the name to even prima facie create a doubt as regards the involvement of the accused in the alleged crime. 13. Mr.Gadhavi further submitted that the only evidence relied upon by the trial court for the purpose of holding the accused guilty of the offence of murder is the discovery of the weapon of offence at the instance of the accused. He would submit that this circumstance by itself is not sufficient to hold the accused guilty of a serious offence like murder and more particularly when the panch witnesses have not supported the case of the prosecution. He submitted that it is true that if the panch witnesses turn hostile and fail to prove the contents of the panchnama, the prosecution can still fall upon the evidence of the Investigating Officer, provided the Investigating Officer in his evidence has proved the contents of the discovery panchnama. It is submitted that it is not sufficient for the Investigating Officer to just depose that as the accused expressed his desire and willingness to point out the place where the weapon of offence was concealed a panchnama in this regard was drawn in presence of the panch witnesses and ultimately the information provided by the accused led to the discovery of an incriminating fact. It is submitted that the Investigating Officer is obliged to depose specifically as to what was the exact statement made by the accused while in the police custody which ultimately led to the discovery of an incriminating fact relevant under Section 27 of the Evidence Act and is also obliged to prove the contents of the panchnama before the same could be relied upon or used as one of the incriminating circumstances against the accused. 14. 14. Mr.Gadhavi further submitted that all that the prosecution has been able to bring on record is that the deceased had suffered multiple injuries, more particularly, on her neck region, caused by a sharp cutting weapon and her dead body was found lying inside the hut. He would submit that just because the accused happens to be the husband of the deceased that by itself is not sufficient to reach to the conclusion that no one else other than the accused could have committed the murder. He would submit that there is nothing on record to indicate that the deceased was last seen in company of the accused. 15. In the last, Mr.Gadhavi submitted that the case on hand is one of no evidence. Suspicion, however, strong, cannot take the place of proof. Prosecution is obliged to prove its case beyond reasonable doubt. In such circumstances referred to above, the learned counsel prays that there being merit in the Appeal, the same may be allowed and the conviction of the appellant may be set-aside. SUBMISSIONS ON BEHALF OF THE STATE : 16. Mr.H.K.Patel, the learned APP appearing for the State, submitted that the trial court rightly convicted the appellant for the offence of murder punishable under Section 302 of the Indian Penal Code by placing reliance on the circumstantial evidence emerging from the record of the case. Mr.Patel would submit that although all the witnesses turned hostile, yet the circumstantial evidence on record would indicate that it was the appellant alone and none other who could have committed the murder. 17. Mr.Patel, the learned APP, first invited the attention of this Court to the evidence of the PW13, i.e. the father of the accused. He pointed out that although the PW13 has been declared as a hostile witness, yet he admitted his thumb impression on the FIR. This, according to the learned APP, atleast establishes the fact that the FIR was lodged by the PW13 at the police station after the incident. The learned APP submitted that the PW13 has deposed that he went to the police station and lodged the FIR as his son, i.e. the accused herein, had a petty quarrel with his wife, i.e. the deceased, and in the heat of moment, he went to the police station and lodged the FIR. The learned APP submitted that the PW13 has deposed that he went to the police station and lodged the FIR as his son, i.e. the accused herein, had a petty quarrel with his wife, i.e. the deceased, and in the heat of moment, he went to the police station and lodged the FIR. The learned APP thereafter pointed out that in the examination-in-chief of the PW13, he was shown the muddamal scythe. The PW13, on being shown the muddamal scythe, stated before the court that the scythe was not one which might have been used at the time of the incident. According to the learned APP, the PW13 has tried to convey that the accused had assaulted his wife with a weapon but not with the weapon which was being shown to him. 18. The learned APP thereafter invited the attention of this Court to the evidence of the PW22 - Hiraben Megha Koli. The PW22 is the mother of the accused. She has also turned hostile. In her examination-in-chief, she has deposed that his son had got married with Kesar (deceased) about 15 years back. At the time of the incident, the PW22 was at the farm. Her son Bharat (accused) and his wife (deceased) were at the other end of the farm and had gone to sleep in the night. She has no idea what transpired in the night hours. She has deposed that many people had gathered and Kesar (deceased) was shifted to the hospital where she was declared dead. Relying on this part of the evidence of the PW22, the learned APP submitted that atleast it has come on the record that in the night hours the deceased and the accused were together, they had gone to sleep and on the next day in the morning the deceased was found dead. The learned APP vehemently submitted that if the deceased was last seen in company of the accused and if the dead body is ultimately found lying inside the hut, then the accused owes an explanation as to what had happened to his wife in the night hours. In such circumstances, according to Mr.Patel, the trial court is justified in holding the accused guilty of the offence of murder of his wife with the aid of Section 106 of the Evidence Act. In such circumstances, according to Mr.Patel, the trial court is justified in holding the accused guilty of the offence of murder of his wife with the aid of Section 106 of the Evidence Act. Mr.Patel, the learned APP, submitted that in view of the above, there being no merit in this Appeal, the same be dismissed and the judgment and order of conviction and sentence be affirmed. ANALYSIS : 19. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our determination in this Appeal is, whether the trial court committed any error in finding the accused guilty of the offence of murder punishable under Section 302 of the Indian Penal Code. 20. We first propose to consider the medical evidence on record. The prosecution has examined the PW33 Dr.Devendragiri Kirtigiri Goswami (Exh.62/C). The PW33 Dr.Goswami, in his evidence, has deposed that on 28th May 2012 he was present at his Goswami Hospital situated at Selarinaka, Rapar. At that time, the deceased Kesarben was brought by few of her relatives for treatment. Upon examination, Dr.Goswami found Kesarben dead. Dr.Goswami immediately informed the Bhimasar Police Station. It is this information given by Dr.Goswami which led to the registration of accidental death No.5 of 2012. This AD came to be registered at around 1:05 pm on 28th May 2012. 21. The prosecution has examined the PW31 Dr.Arunkumar Vishnudevsing Kurmi (Exh.57/C). Dr.Kurmi, in his evidence, has deposed that on 28th May 2012 at around 20:45 hours he was present at the Community Health Centre, Rapar. He has deposed that at that time the dead body of one lady by name Kesarben was brought by the ASI of the Bhimasar Camp at Aadesar for the purpose of postmortem. Dr.Kurmi performed the postmortem along with Dr.A.P.Waghela on the next day, i.e. on 29th May 2012 at around 1:15 in the afternoon. While performing the postmortem, the following injuries were noticed by Dr.Kurmi and those injuries have been stated in the Column No.17 : “(1) Sharp wound on Rt. shoulder and arm - Margin sharp; size 2 cm in length x 2 cm in breadth x 1 cm in depth (2) Sharp wound on Rt. side of neck; size 11cm x 9 cm x 3 cm - Margin sharp (3) Sharp wound on Rt. shoulder and arm - Margin sharp; size 2 cm in length x 2 cm in breadth x 1 cm in depth (2) Sharp wound on Rt. side of neck; size 11cm x 9 cm x 3 cm - Margin sharp (3) Sharp wound on Rt. side of cheek - Margin sharp; size 2 cm in length x ¾ cm in breadth x ½ cm in depth (4) Sharp wound on chin; size 3 cm in length x ½ cm in breadth x ½ cm in depth (5) Sharp wound in front of Rt. ear - Margin sharp; size 5 ½ cm in length x 2 cm in breadth x 2 cm in depth (6) Sharp wound behind Rt. ear - Margin sharp; size 6 m in length x 1 cm in breadth x 1 ½ cm in depth (7) Cut and sharp wound on Rt. mastoid bone (8) Cut wound on pinna of Rt. ear (9) Superficial abrasion on Left side of forehead; size 2 cm x 1 cm x 1 cm in depth (10) Sharp wound on posterior of neck; size 7 cm in length x ½ cm in breadth x 2 cm in depth” 22. The PW31 has deposed that there were multiple injuries on the body of the deceased as noted in the postmortem report and the cause of death assigned was cardio-respiratory failure on account of the multiple injuries leading to hypovolemic shock. The muddamal scythe, i.e. the weapon of offence, on being shown, the PW31 stated that the injuries sustained by the deceased were possible by such a weapon. In the crossexamination by the defence counsel, nothing substantial could be elicited rendering the evidence in chief of the doctor doubtful in any manner. Thus, from the medical evidence on record, the prosecution has been able to establish that the deceased had suffered multiple injuries on her body, more particularly, the neck region and such injuries could have been caused by a sharp cutting weapon like the scythe. 23. As the conviction of the accused is substantially with the aid of Section 106 of the Evidence Act, we would like to concentrate on this issue itself. 23. As the conviction of the accused is substantially with the aid of Section 106 of the Evidence Act, we would like to concentrate on this issue itself. Before we proceed to discuss the scope and ambit of Section 106 of the Evidence Act, we take note of the fact that the trial court came to the conclusion that as the deceased happened to be the wife of the accused and both were together and something happened inside the hut, the onus would shift upon the accused to explain what had happened and the failure on the part of the accused to explain would be sufficient to draw an inference that it was none other than the accused who committed the murder of his wife. SECTION 106 OF THE EVIDENCE ACT : “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.” 24. Two of the earliest cases in which Section 106 of the Evidence Act was examined and explained are Attygalle v. Emperor, reported in (1936)38 Bombay L.R. 700, and Seneviratne v. King, reported in (1937)39 Bombay L.R. 1. In the aforesaid decisions, Their Lordships of the Privy Council dealt with Section 106 of Ordinance No.14 of 1895 (corresponding to Section 106 of the Indian Evidence Act). It was held that Section 106 of the Evidence Act does not affect the onus of proof and throw upon the accused the burden of establishing innocence. 25. The scope of Section 106 of the Indian Evidence Act was examined in considerable detail by the Supreme Court in the case of Shambhu Nath Mehra v. State of Ajmer, reported in AIR 1956 SC 404 , wherein the learned Judges spelt out the legal principle in paragraph 11 which read as under : “11. 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. 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.” 26. A somewhat similar question was examined by the Supreme Court in connection with Sections 167 and 178-A of the Sea Customs Act in Collector of Customs, Madras & Ors. v. D. Bhoormull, AIR 1974 SC 859 , and it will be apt to reproduce paragraphs 30 to 32 of the report which are as under : “30. It cannot be disputed that in proceedings for imposing penalties under Clause (8) of Section 167, to which Section 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi criminal proceedings, where there is no statutory provision to the contrary. But, in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it - “all exactness is a fake". El Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case. 31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered - to use the words of Lord Mansfield in Blatch v. Archer (1774)1 Cowp. 31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered - to use the words of Lord Mansfield in Blatch v. Archer (1774)1 Cowp. 63 at p.65 “according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted”. Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. 32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he falls to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in 'Law of Evidence', (12th Edn. Article 320, page 291), the “presumption of innocence is, no doubt, presumptio juris; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property”, though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice.” 27. In Ch. Razik Ram v. Ch. J.S. Chouhan, reported in AIR 1975 SC 667 , it has been held as under : “116. It will only alleviate that burden to discharge which very slight evidence may suffice.” 27. In Ch. Razik Ram v. Ch. J.S. Chouhan, reported in AIR 1975 SC 667 , it has been held as under : “116. In the first place, it may be remembered that the principle underlying Section 106, Evidence Act which is an exception to the general rule governing burden of proof - applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant-respondent. It cannot apply when the fact is such as to be capable of being known also by persons other than the respondent.” 28. In State of West Bengal v. Mir Mohammad Umar, reported in 2000 SCC (Cri) 1516, it has been reiterated as under : “36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows : “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn 35 regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference. 38. Vivian Bose, J. had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.” 29. The applicability of Section 106 of the Indian Evidence Act, 1872 has been lucidly explained by the Supreme Court in paragraph 23 of its judgment rendered in the case of State of Rajasthan v. Kashi Ram, reported in JT 2006 (12) SCC 254 , which runs as here under : “23. 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. 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. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution.” 30. The Supreme Court in Trimukh Maroti Kirkan v. State of Maharashtra, reported in (2007)10 SCC 445 , reiterated as here under : “14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh (2003) 11 SCC 271 ). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: “(b) A is charged with traveling on a railway without ticket. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: “(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him.” 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.” 31. In the case of P.Mani v. State of T.N., 2006(3) SCC 161 , the Supreme Court held as here under : “10. We do not agree with the High Court. In a criminal case, it was for the prosecution to prove the involvement of an accused beyond all reasonable doubt. It was not a case where both, husband and wife, were last seen together inside a room. The incident might have taken place in a room but the prosecution itself has brought out evidences to the effect that the children who had been witnessing television were asked to go out by the deceased and then she bolted the room from inside. As they saw smoke coming out from the room, they rushed towards the same and broke open the door. Section 106 of the Evidence Act, to which reference was made by the High Court in the aforementioned situation, cannot be said to have any application whatsoever 11. The High Court furthermore commented upon the conduct of the Appellant in evading arrest from 4.10.1998 to 21.10.1998. The Investigating Officer did not say so. He did not place any material to show that the Appellant had been absconding during the said record. The High Court furthermore commented upon the conduct of the Appellant in evading arrest from 4.10.1998 to 21.10.1998. The Investigating Officer did not say so. He did not place any material to show that the Appellant had been absconding during the said record. He furthermore did not place any material on records that the Appellant could not be arrested despite attempts having been made therefore. Why despite the fact, the Appellant who had been shown to be an accused in the First Information Report recorded by himself was not arrested is a matter which was required to be explained by the Investigating Officer. He admittedly visited the place of occurrence and seized certain material objects. The Investigating Officer did not say that he made any attempt to arrest the Appellant or for that matter he had been evading the same. He also failed and/or neglected to make any statement or bring on record any material to show as to what attempts had been made by him to arrest the Appellant. No evidence furthermore has been brought by the prosecution to show as to since when the Appellant made himself unavailable for arrest and/or absconding. 12. The absence of injury on the person of accused had been found by the High Court to be one of the grounds for believing the prosecution case. All the prosecution witnesses categorically stated that the fire was doused by pouring water. In that situation, no wonder, the Appellant did not suffer any burn injury. It is not the case of the prosecution that in fact any other person had suffered any burn injury in the process of putting out the fire. The incident admittedly took place inside a small room. It had two doors. The prosecution witnesses knocked both the doors. Their call to the deceased to open the door remained unanswered and only then they took recourse to breaking open the door. According to them, not only the Appellant herein was with them at that point of time, but also he took part in dousing the flames. Indisputably, he took the deceased to the hospital. If the version of the deceased in her dying declaration is accepted as correct, the witnesses and in particular the neighbours would have lodged a First Information Report and in any event, would not have permitted the Appellant to take her to the hospital.” 32. Indisputably, he took the deceased to the hospital. If the version of the deceased in her dying declaration is accepted as correct, the witnesses and in particular the neighbours would have lodged a First Information Report and in any event, would not have permitted the Appellant to take her to the hospital.” 32. The Supreme court in the case of Vikramjit Singh v. State of Punjab, 2006 (12) SCC 306 observed as here under : “13. In the instant case, there are two versions. The learned Sessions Judge proceeded to weigh the probability of both of them and opined that the appellant having not been able to prove its case, the prosecution case should be accepted. In our opinion, the approach of the learned Sessions Judge was not correct. The High Court also appeared to have fallen into the same error. It invoked Section 106 of the Indian Evidence Act although opining: “The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.” 14. Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule, e.g. where burden of proof may be imposed upon the accused by reason of a statute. 15. It may be that in a situation of this nature where the court legitimately may raise a strong suspicion that in all probabilities the accused was guilty of commission of heinous offence but applying the well-settled principle of law that suspicion, however, grave may be, cannot be a substitute for proof, the same would lead to the only conclusion herein that the prosecution has not been able to prove its case beyond all reasonable doubt.” 33. The Supreme Court in the case of State of Rajasthan v. Thakur Singh, reported in (2014)12 SCC 211 , while allowing the appeal preferred before it by the State of Rajasthan against the judgment and order of the Rajasthan High Court, by which the High Court had set aside the conviction of the accused Thakur Singh recorded by the trial court under Section 302 I.P.C. on the ground that there was no evidence to link the respondent with the death of the deceased which had taken place inside the room in the respondent's house, in which he had taken the deceased (his wife) and their daughter and bolted it from within and kept the room locked throughout and later in the evening when the door of the room was broken open the deceased was found lying dead in the room occupied by her and the respondent-accused, held: “The High Court did not consider the provisions of Section 106, Evidence Act at all. The law is quite well settled, that burden of proving guilt of the 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. In the instant case, since the deceased died an unnatural death in the room occupied by her and the respondent, cause of unnatural death was known to the respondent. There is no evidence that anybody else had entered their room or could have entered their room. The respondent 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 he did set up any case that some other person entered room and cause to the unnatural death of his wife. The facts relevant to the cause of the death of the deceased being known only to the respondent, yet he chose not to disclose them or to explain them. The principle laid down in Section 106, Evidence Act, is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that the deceased was murdered by the respondent. The principle laid down in Section 106, Evidence Act, is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that the deceased was murdered by the respondent. It is not that the respondent was obliged to prove his innocence or prove that he had not committed any offence. All that was required of the respondent was to explain the unusual situation, namely, of the unnatural death of his wife in their room, but he made no attempt to do this. The High Court has very cursorily dealt with the evidence on record and has upset a finding of guilt by the trial court in a situation where the respondent to failed to give any explanation whatsoever for the death of his wife by asphyxia in his room. In facts of the case, approach taken by the trial court was the correct approach under the law and the High Court was completely in error in a relying primarily on the fact that since most of the material prosecution witnesses (all of whom were relatives of the respondent) had turned hostile, the prosecution was unable to prove its case. The position in law, particularly Section 106, Evidence Act, was completely overlooked by the High Court, making it a rife at a perverse conclusion in law.” 34. Thus, what follows from the reading of the decisions referred to herein above, is that prosecution has to establish the guilt of the accused filtered of all reasonable prognosis favourable to accused to secure conviction and it is never relieved of its initial duty. It is only when the initial burden has been discharged by the prosecution that the defence of the accused has to be looked into. Section 106 of the Indian Evidence Act cannot be applied to fasten the guilt on the accused, even if the prosecution has failed in its initial burden. Section 106 of the Evidence Act cannot be utilised to make up for the prosecution's in ability to establish it's case by leading cogent and reliable evidence, especially when prosecution could have known the crime by due diligence and care. Section 106 of the Evidence Act cannot be utilised to make up for the prosecution's in ability to establish it's case by leading cogent and reliable evidence, especially when prosecution could have known the crime by due diligence and care. Aid of Section 106 Evidence Act can be had only in cases where prosecution could not produce evidence regarding commission of crime but brings all other incriminating circumstances and sufficient material on record to prima facie probablise it's case against the accused and no plausible explanation is forthcoming from the accused regarding fact within his special knowledge about the incident. That section lays down only this much that if a fact is in the “special knowledge of a person” and other side could not have due knowledge of it in spite of due diligence and care then burden of proving that fact lies on that person in whose special knowledge it is. Section 106 Evidence Act has no application if the fact is in the knowledge of the prosecution or it could have gained it's knowledge with due care and diligence. 35. Sections 101 to Section 114A of Chapter-VII of the Indian Evidence Act, 1872, deal with the subject “OF THE BURDEN OF PROOF”. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proof to prove that fact is upon him. Section 106 is an exception to Section 101 of the Evidence Act which stipulates that 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. Section 106 of the evidence act has to be read in conjunction with and not in derogation of Section 101 Evidence Act. Section 106 of the Indian Evidence Act does not relieve the prosecution of it's primary and foremost duty to establish the guilt of the accused beyond all reasonable doubts independent of the weaknesses of the defence. Section 106 of the evidence act has to be read in conjunction with and not in derogation of Section 101 Evidence Act. Section 106 of the Indian Evidence Act does not relieve the prosecution of it's primary and foremost duty to establish the guilt of the accused beyond all reasonable doubts independent of the weaknesses of the defence. It is only when prosecution, for well perceptible and acceptable reasons, is unable to lead evidence because of circumstances beyond it's control including the reason that the fact required to be proved was “within the special knowledge of an accused alone” and prosecution could not have known it by due care and diligence, that Section 106 can be resorted to by shifting the burden on the accused to divulge that fact which is “in his special knowledge” and if accused fails to offer any reasonable explanation to satiate judicial inquisitive scrutiny, he is liable to be punished. Section 106 is not meant to be utilized to make up for the prosecution's inability to establish its case by leading, cogent and reliable evidence. 36. However once the prosecution establishes the entire chain of circumstances together in a conglomerated whole unerringly pointing out that it was accused alone who was the perpetrator of the crime and the manner of happening of the incident could be known to him alone and within his special knowledge, the recourse can be taken to Section 106 of the Evidence Act. The aid of Section 106 of the Evidence Act can be invoked only in cases where the prosecution could produce evidence regarding the commission of crime to bring all other incriminating circumstances and sufficient material on record to prima-facie probablise its case against the accused and no plausible explanation is forthcoming from the accused regarding fact within his special knowledge about the incident. 37. Section 106 of the Evidence Act lays down only this much that if a fact is in the “special knowledge of a person” and other side could not have due knowledge of it in spite of due diligence and care then burden of proving that fact lies on such person in whose special knowledge it is. 38. 37. Section 106 of the Evidence Act lays down only this much that if a fact is in the “special knowledge of a person” and other side could not have due knowledge of it in spite of due diligence and care then burden of proving that fact lies on such person in whose special knowledge it is. 38. We may also refer to a very recent pronouncement of the Supreme Court in the case of Reena Hazarika v. State of Assam (Criminal Appeal No.1330 of 2018, decided on 31st October 2018), wherein the Supreme Court observed in para-9 as under : “9. The essentials of circumstantial evidence stand well established by precedents and we do not consider it necessary to reiterate the same and burden the order unnecessarily. Suffice it to observe that in a case of circumstantial evidence the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Evidence Act, 1872 unless the prosecution first establishes a prima facie case. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the accused, and the benefit of doubt will have to be given.” 39. Thus, the principles discernible from the various decisions referred to above are that it is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. In a case which is otherwise based on direct evidence but for the witnesses turning hostile and the prosecution left only with circumstantial evidence, then in such circumstances, the prosecution is required to establish the continuity in the links of the chain of circumstances so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused. The most important principle as discernible from the various decisions referred to above is that if the prosecution has not been able to discharge its initial burden of proving the guilt of the accused, then it cannot straightway take recourse of Section 106 of the Evidence Act and shift the onus upon the accused to establish his innocence. To put it in other words, even if the deceased is last seen in company of the accused or take the case of husband and wife, sans the facts and evidence in a case, it will not be sufficient to shift the onus upon the accused under Section 106 of the Evidence Act unless the prosecution first establishes a prima facie case. 40. Therefore, our endeavour is to ascertain from the evidence on record whether the prosecution has been able to establish a prima facie case for the purpose of invoking Section 106 of the Evidence Act. 41. As noted above, practically all the witnesses have turned hostile including the panch witnesses. No fruitful purpose would be served in discussing the evidence of the hostile witnesses. We looked into closely the evidence of the hostile witnesses with a view to find something which may throw some light but, unfortunately, nothing substantial could be noticed in the evidence of any of the hostile witnesses. In such circumstances, we need to concentrate on the evidence of the PW13 Meghabhai Kumbabhai Koli (Exh.35/C), i.e. the father of the accused, and the PW22 Hiraben Meghabhai Koli (Exh.47/C), i.e. the mother of the accused. The PW13 has deposed that the relations of his son with his wife were quite normal. He has deposed that his son had some altercation in words with his wife. The PW13 has deposed that the relations of his son with his wife were quite normal. He has deposed that his son had some altercation in words with his wife. The PW13 Meghabhai Koli, i.e. the father of the accused, had called them together, and in the heat of moment, he went to the police station and lodged the FIR, whereas the PW22 Hiraben Meghabhai Koli, i.e. the mother of the accused, has deposed that at the time of the incident she was at her farm. Her son Bharat and his wife were at the other end of the farm. They both had gone to sleep in the night and she had no idea what happened during the night hours. By placing reliance on this part of the evidence, the learned APP submitted that it is established that the deceased was last in company of the accused being her husband and on account of strained marital relations and also having regard to the fact that the deceased had just delivered a fourth child, the accused inflicted injuries with a scythe on his wife and killed her. 42. The question is, whether the evidence of the PW13 and PW22 is sufficient enough to come to the conclusion that the prosecution has led prima facie evidence for the purpose of invoking Section 106 of the Evidence Act. We are afraid, we are left with no other option but to answer this question in the negative. Even if we believe that on the previous day in the night the husband and the wife, i.e. the accused and the deceased, were together and had gone to sleep, it would not be sufficient to throw the entire onus upon the accused to explain about the incident because the incident is alleged to have taken place at around 10:30 in the morning. None of the witnesses examined by the prosecution have deposed that in the morning hours the accused and his wife were together at their house. If the witnesses would have supported the case of the prosecution, then it would have been altogether a different matter. It is difficult for us to take the view, having regard to the nature of the evidence on record, that the death had occurred while the deceased was in the company of the accused. If the witnesses would have supported the case of the prosecution, then it would have been altogether a different matter. It is difficult for us to take the view, having regard to the nature of the evidence on record, that the death had occurred while the deceased was in the company of the accused. If that would have been so, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 of the Code. The evidence as regards the deceased last seen to be in company of the accused is very deficient and shaky. 43. At this stage of the dictation, the learned APP intercepted us and submitted that he would like to point out something from the evidence of the PW13. He submitted that although the PW13 has failed to prove the contents of the FIR and has been declared as a hostile witness, yet his entire evidence need not be brushed aside. The learned APP submitted that in the examination-in-chief of the PW13, he has deposed that his son had quarreled with his wife, i.e. the deceased, on a petty issue and they both were called by him together and later in the heat of moment, he went to the police station and lodged the FIR. The learned APP made an endeavour to convince us that it is only on account of the incident that the PW13 had to go to the police station and lodge the FIR, otherwise there was no good reason for him to visit the police station. If he has admitted that something had transpired between his son and the deceased and both were called together by him and thereafter he left for the police station, the same is an indication that something had happened in the morning which establishes the presence of the accused. If that be so, then the trial Judge was justified in convicting the accused with the aid of Section 106 of the Indian Penal Code. 44. It is a well-settled principle of law that simply because a witness has turned hostile his statement is not to be discarded and ignored in toto and is not washed off the record. If the Court finds that some thing is there in the statement of a hostile witness worth placing the reliance it will be free to do so. It is a well-settled principle of law that simply because a witness has turned hostile his statement is not to be discarded and ignored in toto and is not washed off the record. If the Court finds that some thing is there in the statement of a hostile witness worth placing the reliance it will be free to do so. We are inclined over here to cite the observations of Their Lordships of the Supreme Court as reported in Syed Akbar v. State of Karnataka, AIR 1979 SC 1848 : (1979 Cri LJ 1374), wherein Their Lordships relied on their earlier judgment as reported in Sat Paul v. Delhi Administration, AIR 1976 SC 294 : (1976 Cri LJ 295) “....Even in a criminal prosecution when a witness is crossexamined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether, it is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be credit-worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto .” 45. We are afraid, the learned APP wants us to assume certain things on the basis of the evidence of a hostile witness. Even if we believe that part of the evidence of the PW13, it is difficult for us to take the view that the same by itself constitutes a prima facie case against the accused showing his involvement in the crime and, therefore, sufficient enough to invoke Section 106 of the Evidence Act and throw the burden upon the accused to explain what had happened in the morning of the fateful day. 46. 46. The learned APP also placed strong reliance on the circumstance of the discovery of the weapon of offence. Unfortunately, even the discovery of the weapon of offence as contemplated under Section 27 of the Evidence Act could not be said to have been proved by the prosecution in accordance with law. Both the panch witnesses to the discovery panchnama turned hostile. They have failed to prove the contents of the discovery panchnama. In such circumstances, the prosecution is now trying to fall back upon the evidence of the Investigating Officer, i.e. the PW37 Maheshkumar Jivrajbhai Chaudhari (Exh.77/C). We are conscious of the fact that there is no such legal proposition that the evidence of the police officials unless supported by independent witness is unworthy of acceptance or the evidence of the police officials can be outright disregarded. We have closely gone through the entire evidence of the PW37. All that the Investigating Officer has deposed is that the accused, after his arrest, expressed his willingness to point out something and that is how the discovery panchnama was drawn leading to the discovery of the weapon of offence. There are two deficiencies in the evidence of the Investigating Officer in this regard. First, he has failed to depose the exact statement made by the accused while in the police custody as regards the discovery, and secondly, the Investigating Officer also failed to prove the contents of the panchnama. It is not sufficient to depose that the panchnama was drawn. If the panch witnesses do not support the case of the prosecution, then the Investigating Officer is obliged to prove the contents of the panchnama if the prosecution wants to rely upon the same. If the Investigating Officer as well as the Public Prosecutor would have been little careful in this regard, then such a mistake could have been averted. Besides the same, even if the discovery of the weapon of offence at the instance of the accused is believed, the same by itself would not automatically be sufficient to reach to the conclusion that the offence was also committed by the accused. In the aforesaid context, we may refer to and rely upon a decision of the Supreme Court in the case of Mustkeem alias Sirajuddin v. State of Rajasthan, (2011)11 SCC 724 . We may quote the observations as contained in paragraphs 25, 26 and 27 thus : “25. In the aforesaid context, we may refer to and rely upon a decision of the Supreme Court in the case of Mustkeem alias Sirajuddin v. State of Rajasthan, (2011)11 SCC 724 . We may quote the observations as contained in paragraphs 25, 26 and 27 thus : “25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. 26. If the recovery memos were prepared at the Police Station itself then the same would lose its sanctity as held by this Court in Varun Chaudhary v. State of Rajasthan reported in AIR 2011 SC 72 : (2010 AIR SCW 6794 : 2011 Cri LJ 675). 27. The scope and ambit of Section 27 were also illuminatingly stated in AIR 1947 PC 67 Pulukuri Kotayya and Ors. v. Emperor reproduced hereinbelow:- “...it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.”” 47. We may also refer to a Division Bench decision of this Court, to which one of us (J.B.Pardiwala, J.) was a party, in the case of Rameshbhai Hajabhai Chachiya v. State of Gujarat, reported in (2012)3 GLR 2250 , wherein the following has been discussed from paragraphs 11 to 16 : “11. Bearing in mind the above principles of law, we have scrutinized scrupulously and examined carefully the circumstances appearing in this case against the accused. We propose to deal with circumstance of discovery of weapon and discovery of the valuables as heavily relied upon by the prosecution first. It appears that the accused was arrested on 4th February, 2004 at 15.30 hours and arrest panchnama to that effect was also drawn which is Exh.44. On the very same day and at the very same hour it is the case of the prosecution that the accused stated before the Investigating Officer that on his own free will and volition he was ready to point out the place at which he has put the axe used in the commission of offence. The Investigating Officer for the purpose of discovery called two panchas and is said to have drawn the discovery panchnama thereby showing discovery of weapon at the instance of the accused. Both the panch witnesses i.e. PW 7 Exh.22 and PW 8 Exh.25 did not support the case of the prosecution and failed to prove the contents of the discovery panchnama of the weapon of offence. The question is as to what would be the evidentiary value of such a piece of circumstance sought to be relied upon by the prosecution, more particularly when two independent witnesses to the panchnama did not support the prosecution. The question is as to what would be the evidentiary value of such a piece of circumstance sought to be relied upon by the prosecution, more particularly when two independent witnesses to the panchnama did not support the prosecution. The trial Court believed and placed reliance on this piece of evidence saying that though the panchas have turned hostile, the Investigating Officer in his evidence has said that the weapon was discovered in the presence of two independent panch witnesses on accused making a statement of disclosure. The Supreme Court in Modan Singh Vs. State of Rajasthan reported in AIR 1978 SC 1511 held that if the evidence of the Investigating Officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that the seizure witnesses do not support the prosecution version. While there cannot be any quarrel with this proposition of law, but still the requirement of law needs to be fulfilled before accepting the evidence of discovery and that is by proving the contents of the panchnama. The Investigating Officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the Investigating Officer has successfully proved the contents of the discovery panchnama in accordance with law then in that case the prosecution may be justified in relying on such evidence and the trial Court may also accept the evidence. In the present case, what we have found from the deposition of the Investigating Officer PW 16 Exh.77 is that he has not proved the contents of both the discovery panchnamas and all that he has deposed is that as the accused was willing to point out the weapon of offence the same was recovered under a panchnama. Same is the statement so far as the discovery of valuables is concerned. We have minutely gone through this part of the evidence of the Investigating Officer and we are convinced that by no stretch of imagination it could be said that the Investigating Officer has proved the contents of both the discovery panchnamas. There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses have turned hostile and have not supported the prosecution. There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses have turned hostile and have not supported the prosecution. In order to enable the Court to safely rely on the evidence of the Investigating Officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the Investigating Officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place. 12. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Phulukuri Kottaya v. Emperor, AIR 1947 PC 67 , which have become locus classicus, in the following words : “It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added “with which I stabbed 'A'” these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” What emerges from the evidence in the form of panchnama is that the appellant stated before the panch witnesses to the effect that “I will show you the weapon used in the commission of offence” . This is the exact statement which we could read from the discovery panchnama and the Investigating Officer also could not have deposed as regards the exact statement other than what has been recorded in the panchnama. This is the exact statement which we could read from the discovery panchnama and the Investigating Officer also could not have deposed as regards the exact statement other than what has been recorded in the panchnama. This statement does not suggest that the appellant indicated anything about his involvement in concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source. He may have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the panchnama of the discovery of weapon and the evidence in this regard is that he disclosed that he would show the weapon used in the commission of offence. In the same manner we have also perused the panchnama Exh.32 wherein the statement said to have been made by the accused before the panchas in exact words is "the accused resident of Roghada village on his own free will informs to take out cash and other valuables". 13. In the case of Narsinhbhai Dahyabhai Vaghela v. State of Gujarat, reported in 1984(1) GLR 118 , this Court observed thus :- “.......When Panchnama was to be prepared accused was present and he stated that “he willingly shows a key”. This would only mean knowledge of the key and not the possession of the key. Possession and knowledge are two different aspects in law. For establishing possession the statement under Section 27 of the Indian Evidence Act would have “I have concealed a key or I have placed a key which I am willing to produce”. Unless it is an admitted fact that it is he who has placed it possession cannot be imputed to him. Production can impute knowledge. If a person has a knowledge that a particular thing is lying at a particular place, that will only establish that he knew that at a particular place a particular thing is lying. This would impute knowledge and not possession.” 14. Production can impute knowledge. If a person has a knowledge that a particular thing is lying at a particular place, that will only establish that he knew that at a particular place a particular thing is lying. This would impute knowledge and not possession.” 14. In Dudh Nath Pandey v. State of U. P., AIR 1981 SC 911 , the Apex Court took into consideration a very similar fact-situation and observed in paragraph 15 that, if the case is dependent on circumstantial evidence, different considerations would have prevailed because the balance of evidence after excluding the testimony of the two eye- witnesses was not of the standard required in cases dependent wholly on circumstantial evidence (as is the case here). Their Lordships observed that evidence of recovery of pistol at the instance of the appellant cannot by itself prove that he who pointed out the weapon wielded it in offence. The statement accompanying the discovery was found to be vague to identify the authorship of concealment and it was held that pointing out of the weapon may, at the best, prove the appellant's knowledge as to where the weapon was kept. 15. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the Investigating Officer in his evidence, and also without proving the contents of the panchnamas, the trial Court was not justified in placing reliance upon the circumstance of discovery of weapon and discovery of cash and other valuables at the instance of the accused by solely relying on the evidence of the Investigating Officer. 16. Discovery evidence, by itself, is subsidiary and cannot sustain a conviction but where there is plenty of other evidence to sustain the prosecution case, discovery evidence may be treated as a valuable piece of corroborative evidence.” 48. Mr.Patel, the learned APP also made an endeavour to convince this Court that even if the discovery panchnama is not said to have been proved in accordance with law, the conduct of the accused in leading the panch witnesses and the police party to a particular place thereby leading to the discovery of an incriminating fact, i.e. the weapon of offence, is a relevant fact under Section 8 of the Evidence Act. 49. 49. There is no difficulty in accepting such submission as canvassed by the learned APP, but an accused cannot be convicted for a serious offence like murder only on the strength of his conduct which may be relevant and admissible under Section 8 of the Evidence Act. The conduct of the accused can be one of the incriminating circumstances that the court may take into consideration along with the other circumstances on record. Unfortunately, in the case on hand, the evidence is so deficient that it would not be advisable or reasonable to fall back upon the conduct of the accused. It is a trite proposition of law, that suspicion, however grave may be, cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of “may be true” but has to essentially elevate it to the grade of “must be true”. In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted. In this context we may refer to and rely upon a decision of the Supreme Court in the case of Jose alias Pappachan v. Sub-Inspector of Police, Koyilandy and another, (2016)10 SCC 519 . We may quote the relevant paragraphs as under : “58. The inalienable interface of presumption of innocence and the burden of proof in a criminal case on the prosecution has been succinctly expounded in the following passage from the treatise “The Law of Evidence” fifth edition by Ian Dennis at page 445: “The presumption of innocence states that a person is presumed to be innocent until proven guilty. The inalienable interface of presumption of innocence and the burden of proof in a criminal case on the prosecution has been succinctly expounded in the following passage from the treatise “The Law of Evidence” fifth edition by Ian Dennis at page 445: “The presumption of innocence states that a person is presumed to be innocent until proven guilty. In one sense this simply restates in different language the rule that the burden of proof in a criminal case is on the prosecution to prove the defendant's guilt. As explained above, the burden of proof rule has a number of functions, one of which is to provide a rule of decision for the fact-finder in a situation of uncertainty. Another function is to allocate the risk of mis-decision in criminal trials. Because the outcome of wrongful conviction is regarded as a significantly worse harm than wrongful acquittal the rule is constructed so as to minimise the risk of the former. The burden of overcoming a presumption that the defendant is innocent therefore requires the state to prove the defendant's guilt.” 59. The above quote thus seemingly concede a preference to wrongful acquittal compared to the risk of wrongful conviction. Such is the abiding jurisprudential concern to eschew even the remotest possibility of unmerited conviction. 60. This applies with full force particularly in fact situations where the charge is the sought to be established by circumstantial evidence. These enunciations are so well entrenched that we do not wish to burden the present narration by referring to the decisions of this Court in this regard. 61. Addressing this aspect, however, is the following extract also from the same treatise “The Law of Evidence” fifth edition by Ian Dennis at page 483: “Where the case against the accused depends wholly or partly on inferences from circumstantial evidence, fact-finders cannot logically convict unless they are sure that inferences of guilt are the only ones that can reasonably be drawn. If they think that there are possible innocent explanations for circumstantial evidence that are not “merely fanciful”, it must follow that there is a reasonable doubt about guilt. There is no rule, however, that judges must direct juries in terms not to convict unless they are sure that the evidence bears no other explanation than guilt. If they think that there are possible innocent explanations for circumstantial evidence that are not “merely fanciful”, it must follow that there is a reasonable doubt about guilt. There is no rule, however, that judges must direct juries in terms not to convict unless they are sure that the evidence bears no other explanation than guilt. It is sufficient to direct simply that the burden on the prosecution is to satisfy the jury beyond reasonable doubt, or so that they are sure. The very high standard of proof required in criminal cases minimises the risk of a wrongful conviction. It means that someone whom, on the evidence, the fact finder believes is “probably” guilty, or “likely” to be guilty will be acquitted, since these judgments of probability necessarily admit that the fact-finder is not “sure”. It is generally accepted that some at least of these acquittals will be of persons who are in fact guilty of the offences charged, and who would be convicted if the standard of proof were the lower civil standard of the balance of probabilities. Such acquittals are the price paid for the safeguard provided by the “beyond reasonable doubt” standard against wrongful conviction.”” 50. In the overall view of the matter, we have reached to the conclusion that there is a considerable doubt as regards the involvement of the accused in the crime. It was an error on the part of the trial court to have invoked Section 106 of the Evidence Act for the purpose of holding the accused guilty of the offence of murder in the absence of any prima facie case established by the prosecution for the purpose of invoking Section 106 of the Evidence Act. The facts of this case are otherwise very gross. A mother of four minor children including an infant was found mercilessly killed inside her hut. Just six days before the incident she had delivered her fourth child. The incident had occurred a day after the performance of the rituals of the sixth day of the birth of the fourth child. Unfortunately, on account of deficient evidence on record, we are left with no other option but to give benefit of doubt to the accused and acquit him of the offence. 51. The incident had occurred a day after the performance of the rituals of the sixth day of the birth of the fourth child. Unfortunately, on account of deficient evidence on record, we are left with no other option but to give benefit of doubt to the accused and acquit him of the offence. 51. At this stage, we deem fit to observe that the trial court should have either proceeded against the hostile witnesses under Section 344 of the Code of Criminal Procedure or at least under Section 340 of the Code. The evil of perjury has assumed an alarming proposition in cases depending on oral evidence and in order to deal with the menace effectively, it is desirable for the Courts to use the provisions of Section 344 or Section 340 of the Code more effectively and frequently than it is presently done. Witnesses change their statements during different stages of the criminal proceedings at their own sweet-will and thereby effecting the course of justice, though under the law, they are bound to state the truth and truth only. 52. A criminal case is built upon the edifice of evidence (whether it is direct evidence or circumstantial evidence) that is admissible in law. Free and fair trial is the very foundation of the criminal jurisprudence. There is a reasonable apprehension in the mind of the public at large that the criminal trial is neither free nor fair with the Prosecutor appointed by the State Government conducting the trial in a manner where frequently the prosecution witnesses turned hostile. 53. We have noticed, while hearing the criminal appeals, that there is practically no effective and meaningful crossexamination by the Public Prosecutor of a hostile witness. All that the Public Prosecutor would do is to confront the hostile witness with his police statement under Section 161 of the Code and contradict him with the same. The only thing that the Public Prosecutor would do is to bring the contradiction on record and thereafter prove those contradictions through the evidence of the Investigating Officer. This is not sufficient. The objects of cross-examination are to impeach the accuracy, credibility and general value of the evidence given in-chief to sift the facts already stated by the witness to detect and expose the discrepancy or to elicit the suppressed facts which will support the case of the cross-examining party. This is not sufficient. The objects of cross-examination are to impeach the accuracy, credibility and general value of the evidence given in-chief to sift the facts already stated by the witness to detect and expose the discrepancy or to elicit the suppressed facts which will support the case of the cross-examining party. What we are trying to convey is that it is the duty of the Public Prosecutor to crossexamine a hostile witness in details and try to establish that the witness is speaking lie and has deliberately resiled from his police statement recorded under Section 161 of the Code. A good, seasoned and experienced Public Prosecutor will not only bring the contradictions on record, but will also cross-examine the hostile witness at length to establish that for any reason, the witness has turned around and resiled from his previous statement. 54. In the aforesaid context, we may refer to a decision of the Supreme Court in the case of Perumal v. Janaki, reported in (2014) 5 SCC 377 , wherein the Supreme Court had observed as under: “19. Therefore, all that subsection (4) of Section 195 says is that irrespective of the fact whether a particular court is subordinate to another court in the hierarchy of judicial administration, for the purpose of exercise of powers under Section 195(1), every appellate court competent to entertain the appeals either from decrees or sentence passed by the original court is treated to be a court concurrently competent to exercise the jurisdiction under Section 195(1). High Courts being constitutional courts invested with the powers of superintendence over all courts within the territory over which the High Court exercises its jurisdiction, in our view, is certainly a Court which can exercise the jurisdiction under Section 195(1). In the absence of any specific constitutional limitation of prescription on the exercise of such powers, the High Courts may exercise such power either on an application made to it or suo moto whenever the interests of justice demand. 20. The High Courts not only have the authority to exercise such jurisdiction but also an obligation to exercise such power in appropriate cases. 20. The High Courts not only have the authority to exercise such jurisdiction but also an obligation to exercise such power in appropriate cases. Such obligation, in our opinion, flows from two factors - (1) the embargo created by Section 195 restricting the liberty of aggrieved persons to initiate criminal proceedings with respect to offences prescribed under Section 195; (2) such offences pertain to either the contempt of lawful authorities of public servants or offences against public justice. 21. .... Any superintendence like any other power impliedly carries an obligation to exercise powers in an appropriate case to maintain the majesty of the judicial process and the purity of the legal system. Such an obligation becomes more profound when these allegations of commission of offences pertain to public justice.” 55. In Manila Vinod Kumari v. State of M.P., reported in 2008 Cri. L.J. 3867, the Supreme Court had observed in paras 9 and 10 as under: “9. The object of the provision is to deal with the evil perjury in a summary way. 10. The evil of perjury has assumed alarming propositions in cases depending on oral evidence and in order to deal with the menace effectively it is desirable for the courts to use the provision more effectively and frequently than it is presently done.” 56. Thus, the message of the Supreme Court is loud and clear. In order to deal with the menace of the witnesses turning hostile, the trial courts must make use of the provisions of Section 344 or 340 of the Code, as the case may be, more effectively and frequently. 57. Free and fair trial is sine quo non of Article 21 of the Constitution of India. The criminal justice system is meant not only for safeguarding the interest of the accused persons, but is equally devoted to the rights of the victims as well. If the criminal trial is not free and fair, then the confidence of the public in the judicial fairness of a Judge and the justice delivery system would be shaken. Denial to fair trial is as much injustice to the accused as to the victim and the society. No trial can be treated as a fair trial unless there is an impartial Judge conducting the trial, an honest and fair defence counsel and equally honest and fair Public Prosecutor. Denial to fair trial is as much injustice to the accused as to the victim and the society. No trial can be treated as a fair trial unless there is an impartial Judge conducting the trial, an honest and fair defence counsel and equally honest and fair Public Prosecutor. A fair trial necessarily includes fair and proper opportunity to the Prosecutor to prove the guilt of the accused and opportunity to the accused to prove his innocence. [see Dinubhai Boghabhai Solanki v. State of Gujarat and others (Criminal Appeal No.492 of 2014 decided by the Supreme Court on 30th October 2017)]. 58. We may also give a fair idea as regards Section 344 of the Code and its object. Section 344 contemplates there steps, namely, (i) the expression of opinion by the court of session or magistrate of 1st class at the time of delivery of judgment or final order that the witness has intentionally given false evidence or fabricated such evidence; (ii) the satisfaction of the court or magistrate that it is necessary and expedient in the interest of justice that the witness should be tried summarily for the offence committed by him; and (iii) the giving of a reasonable opportunity to the offender of showing cause why he should not be so punished. All the conditions are mandatory. 59. In Narayan Swamy v. The State of Maharashtra, AIR 1971 SC 1789 , the Supreme Court had succinctly explained the object with which Section 479-A (Section 344 of the new Code) came to be enacted. We may quote the relevant observations thus : “This section was introduced into the Code with the idea of eradicating to the extent possible the evils of perjury and fabrication of false evidence, a widespread evil that is corroding our judicial system. The then existing procedure in the matter of prosecuting those who give false evidence or use fabricated evidence in judicial proceedings was found to be tardy and ineffective. Therefore power was given both to the trial Court as well as to the appellate Court to forthwith complain against witnesses guilty of perjury or fabricating false evidence without having recourse to the procedure laid down in Sections 476 to 479 of the Code of Criminal Procedure. Therefore power was given both to the trial Court as well as to the appellate Court to forthwith complain against witnesses guilty of perjury or fabricating false evidence without having recourse to the procedure laid down in Sections 476 to 479 of the Code of Criminal Procedure. But at the same time the legislature felt that before proceeding against those persons, the Court must form an opinion that the witness has either given intentionally false evidence or has intentionally fabricated false evidence and further must form an opinion that it is expedient in the interests of justice that the witness should be prosecuted for the offence committed by him.” 60. Section 344 of the Code makes a complete departure from its corresponding Section 479-A of the old Code of 1898. Section 479-A was inserted in the old Code by the Amending Act of 1955 with the object of eradicating the evil of perjury. However, it failed to achieve the desired effect. In its 41st Report, the Law Commission said : “Ever since its introduction the Section has been a source of trouble.............. If speedy punishment for perjury is the aim, then the Section does not go far enough.....” 61. However, it failed to achieve the desired effect. In its 41st Report, the Law Commission said : “Ever since its introduction the Section has been a source of trouble.............. If speedy punishment for perjury is the aim, then the Section does not go far enough.....” 61. We may compare Section 344 with the old Section 479-A as under : “479-A. Procedure in certain cases of false evidence : - (1) Notwithstanding anything contained in Sections 476 to 479 inclusive, when any Civil, Revenue or Criminal Court is of opinion that any person appearing before it as a witness has intentionally given false evidence in any stage of the judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding, and that, for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him at the time of the delivery of the judgment or final order disposing of such proceedings, record a finding to that effect stating its reasons therefore and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint there of in writing signed by the presiding officer of the court setting forth the evidence which, in the opinion of the court, is false or fabricated and forward the same to a Magistrate of the first class having jurisdiction and may, if the accused is present before the court, take sufficient security for his appearance before such Magistrate and may bind over any person to appear and given evidence before such Magistrate: Provided that where the Court making the complaint is a High Court, the complaint may be signed by such officer of the court as the Court may appoint; Explanation: For the purpose of this Sub-section, a Presidency Magistrate shall be deemed to be a Magistrate of the first class; (2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under Section 200; (3) No appeal shall lie from any finding recorded and complaint made under Sub-section (1); (4) Where, in any case, a complaint has been made under Sub-section (1) and appeal has been preferred against the decision arrived at in the judicial proceeding out of which the matter has arisen, the hearing of the case before the Magistrate to whom the complaint was forwarded or to whom the case, may have been transferred shall be adjourned until such appeal is decided; and appellate court, after giving the person against whom the complaint has been made an opportunity of being heard, may, if it so thinks fit, make an order directing the withdrawal of the complaint; and a copy of much order shall be sent to the Magistrate before whom the hearing of the case is pending; (5) In any case, where an appeal has been preferred from any decision of a civil, revenue of criminal court but no complaint has been made under Sub-section (1), the power conferred on such Civil, Revenue or Criminal Court under the said Sub-section may be exercised by the appellate Court; and where the Appellate Court makes such complaint, the provisions of Sub-section (1) shall apply accordingly, but no such order shall be made, without giving the person affected thereby an opportunity of being heard; (6) No proceedings shall be taken under Sections 476 to 479 inclusive for the prosecution of a person for giving or fabricating false evidence, if in respect of such a person proceedings may be taken under this Section.” “Section 344 (new) Summary procedure for trial giving false evidence : - (1) If, at the time of delivery of any judgment or final order disposing of any judicial proceeding, a Court of Sessions or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding has knowingly or willfully given false evidence or has fabricated false evidence, with the intention that such evidence should be used in such proceedings; it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to five hundred rupees, or with both (2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials; (3) Nothing in this Section shall affect the power of the Court to make a complaint under Section 340 for the offence, where it does not choose to proceed under this Section; (4) Where, after any action is initiated under Sub-section (1), it is made to appear to the Court of Sessions or Magistrate of the first class that an appeal or an application for revision has been preferred or filed against the judgment or order in which the opinion referred to in that Sub-section has been expressed it or he shall stay further proceedings of the trial until the disposal of the appeal or the application for revision, as the case may be, and thereupon the further proceedings of the trial shall abide by the results of the appeal or application for revision.” 62. One feature which is common to both is that the power given by the two Sections has to be exercised at the time of delivery of the judgment or final order disposing of a judicial proceeding. Under the old Section 479-A the Court was not given the power to punish the offender itself and was required to file a complaint to a Magistrate of the first class having jurisdiction. Now under Section 344 the Court of Sessions or Magistrate of the first class has been empowered to take cognizance itself and try the offender summarily. The scope of the provision has however been confined to obvious cases of perjury. It authorises the court to pass a small sentence which may extend to three months and fine. Under the old Section the sentence to be imposed was governed by the provision of the Indian Penal Code. Under the old Section the proceedings under Sections 476 to 479 were totally excluded if action under Section 479-A could be taken. By Sub-section (3) of Section 344 it has now been made clear that nothing in this Section affect the court to make a power of the complaint under Section 340 where it does not choose to proceed under Section 344. 63. In view of this, Section 344 has to be construed on its own terms and contents. It has a very limited operation and applies only to the case of giving or fabricating false evidence by a witness in the proceedings. The offences which do not fall in this category are outside the purview of this Section. Further, Section 344 is an enabling provision. It is supplemental to and not in derogation or substitution of the provisions contained in the Indian Penal Code or the Criminal Procedure Code. The object of the Section is to facilitate expeditious trial of offence of giving or fabricating false evidence which comes to the notice of the court at the time of delivery of any judgment or final order. To us, the scheme of Section 344 appears to be that it provides an additional mode of trying and punishing offenders for giving or fabricating false evidence. To us, the scheme of Section 344 appears to be that it provides an additional mode of trying and punishing offenders for giving or fabricating false evidence. The provision is discretionary and where the court considers that it is likely to raise complicated questions or the act otherwise deserves more serious punishment or where action is considered expedient even before the trial reaches the stage of judgment or final order it is open to the court to direct initiation of proceedings under the ordinary provisions contained in the Code. Of course, if all the conditions of Section 344 of the Code are satisfied and the court considers it expedient in the interest of justice to take cognizance and try the case itself, it can do so but such a course can be adopted when the main case reaches the stage of judgment or final order. 64. The object underlying the section is to obviate delay inherent in launching a prosecution under Section 340. That being so, there must be strict compliance with the provisions of the section. And the purpose is further to arm the court with a weapon to deal with more flagrant cases. If at the time of delivery of judgment, no opinion can be formed on the available material for the filing of a complaint, this section will have no application (see Santokh Singh v. Izhar Hussain and another, AIR 1973 SC 2190 ). 65. In Shabir v. State of Maharashtra, AIR 1963 SC 816 , it has been held that where the court has formed an opinion that though the witness has intentionally given false evidence or intentionally fabricated false evidence the nature of the perjury or fabrication committed by him is not such as to make it expedient in the interest of justice to make a complaint, it has a discretion not to make a complaint. The following are the essentials for application of the section : (i) The accused must have appeared as a witness in a judicial proceeding; (ii) he must have committed the offence of perjury at any stage of such proceeding; (iii) the judgment or final order must have a finding that the evidence was falsely given or fabricated knowingly or willfully; (iv) the court or magistrate must have been satisfied that it is necessary and expedient in the interest of justice that the offender should be punished; (v) the accused is asked to show cause against prosecution. 66. We may also give a fair idea as regards the distinction between Section 340 and Section 344 of the Code. The following are the points of distinction between Sections 340 and 341 on the one hand and Section 344 on the other: While the former cover all the offences mentioned in Section 195(1)(b), the latter deals with only two offences of knowingly or willfully giving or fabricating false evidence. Secondly, in the former, action may be taken by the court suo motu or on application; but in the latter, no application is contemplated. 67. The provisions of Section 344 come into play only when there are materials on record to come to the conclusion at the time of delivery of judgment that a witness appearing before the court has given false evidence or has fabricated false evidence. But, when the facts establishing the falsity of the evidence are brought to the notice of the court after the delivery of the judgment, Section 344 is not attracted. However, in such circumstance it would be open to the court to proceed under Section 340. 68. In the result, the Appeal succeeds and is hereby allowed. The order of conviction and sentence dated 30th July 2018 passed by the 5th Additional Sessions Judge, Anjar, District Kutch, in the Sessions Case No.87 of 2015 (Old Case No.54 of 2012) are hereby quashed and set-aside. The accused-appellant is acquitted of the offence he is charged with and he be set at liberty forthwith, if not required in any other case.