ORDER : ARUN BHANSALI, J. 1. The appellant has preferred this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) aggrieved against the judgment dated 20.07.2018 passed by Additional Sessions Judge No.1, Parbarsar, District Nagaur (hereinafter referred to as ‘the trial court’) in Session Case No.37/2011, whereby appellant, Om Kanwar, has been convicted for offence under Section 302 IPC and sentenced for life imprisonment with a fine of Rs.20,000/-with default stipulation to undergo six months’ additional simple imprisonment. 2. Brief facts relevant and essential for disposal of the appeal are as under: 3. On 11.03.2010 complainant, namely, Shankar Singh (PW.6) appeared at Police Station Gachichhipura and gave a written report (Exhibit-P/1) to the effect that on 10.03.2010 he and his wife were not at home, only his daughter-in-law and grand daughter were at home. He had left them hale and hearty. His neighbourer telephoned him indicating that his grand daughter was not well, on which he came home and saw her, however, could not understand anything and took her to Badu, where the doctor informed that she was dead; as it was already night, he brought her back to home. The death is not natural and, therefore, prayed that action be taken and investigation be done. He has suspicion against his daughter-in-law, Om Kanwar, who is the mother of the child. 4. Based on the aforesaid written information, the SHO, Police Station Gachichhipura registered a case vide F.I.R. No.16/2010 for offence under Section 302 of IPC and investigation commenced. The investigation of the case culminated into submission of the charge sheet against the appellant for offence under Section 302 of IPC before the court of Judicial Magistrate, First Class, Makrana, District Nagaur, who in turn, committed the case to the court of Additional Sessions Judge No.1, Parbatsar, District Nagaur. 5. The trial court thereafter framed charges against the appellant under Section 302 IPC, which she denied and pleaded not guilty and claimed trial. 6. The prosecution in support of its case examined as many as 18 witnesses and also got 18 documents and one article exhibited. Appellant upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against her in the prosecution evidence, she denied the same and claimed to be innocent and made prayer for leading defence evidence. In defence, the appellant examined two witnesses viz. Appellant upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against her in the prosecution evidence, she denied the same and claimed to be innocent and made prayer for leading defence evidence. In defence, the appellant examined two witnesses viz. DW.1 and DW.2 and got 9 documents exhibited. 7. After hearing the arguments advanced by the Public Prosecutor and the counsel for the defence and upon appreciating the evidence available on record, the trial court vide its judgment impugned dated 20.07.2018 proceeded to convict and sentence the appellant, as indicated hereinbefore. 8. Learned counsel for the appellant vehemently and fervently urged that there is no evidence worth the name on record of the case so as to show that the appellant murdered her own child Guddi. He contends that the appellant was not present in the room with the child when the murder took place. He further submitted that the motive to kill child was with the matrimonial relatives of the accused appellant and hence it is clearly a case where she has been falsely implicated for oblique motive. Further submissions were made that the trial court has held the appellant guilty solely relying on the evidence of ‘last seen’ and besides the same, there is no evidence worth the name so as to implicate the appellant. The prosecution has failed to bring home guilt against the appellant on the strength of circumstance of last seen, as deposed by PW.1-Geeta, PW.2-Jamna and PW.5-Bhanwar Kanwar. 9. Submissions have been made that the child was born within seven months of the date of marriage of the appellant with her husband and her in-laws doubted the paternity of the child, which was the motive enough for her in-laws to kill the child. It was also submitted that there are material contradictions in the statements of the witnesses regarding the reason for absence of the appellant’s mother-in-law Smt. Chhagan Kanwar (PW.4), inasmuch as DW-1 and DW-2 had indicated that she had committed the murder of the child. 10. Reliance was placed on Boby vs. State of Kerala : 2023 Cr.L.R. (SC) 225. 11. With the above submissions/grounds, counsel for the appellant submitted that appeal be allowed, the judgment impugned be quashed and the appellant be acquitted from the offence charged. 12. Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the counsel for the appellant. 10. Reliance was placed on Boby vs. State of Kerala : 2023 Cr.L.R. (SC) 225. 11. With the above submissions/grounds, counsel for the appellant submitted that appeal be allowed, the judgment impugned be quashed and the appellant be acquitted from the offence charged. 12. Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the counsel for the appellant. Submissions were made that the witnesses viz. PW.1, PW.2 and PW.5 have given categoric evidence to the effect that appellant was sitting in the courtyard ( vkaxu ) of the house and the child was playing in her lap. The appellant went inside the room with the child and came out after two hours complaining that the child was not well and when witness PW.5 saw her, child’s body was cold and was ultimately found dead. As per postmortem report (Exhibit-P/7), the cause of death was asphyxia as a result of antemortem throttling. It is submitted that since the appellant alone was present in the room, where the child was murdered and there is a clear suspicion on the appellant that the child was born from illicit relations, the appellant had a clear motive to kill the child. 13. It is further submitted that plea raised pertaining to child dying due to getting entangled in the rope of the cot ( ^nkou^ ), has been clearly negated by the medical jurist PW.18-Dr. Sageer Ahmed. Further, not a word has been said in the statement of the appellant recorded under Section 313 Cr.P.C. regarding the cause/ circumstance leading to death of the child and, therefore, in view of provisions of Section 106 of the Evidence Act, it is submitted that the case is proved beyond any reasonable doubt against the appellant. With these submissions, learned Public Prosecutor sought dismissal of the appeal and confirmation of the judgment impugned. 14. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and carefully re-appreciated the evidence available on record. 15. The trial court after referring to the evidence i.e. statement of PW.6, namely, Shankar Singh, father-in-law of the appellant, photographs (Exhibit-P/5, P/11 and P/13), matrimonial discord between the couple on account of birth of a fully matured child within seven months of the marriage and for lack of any explanation by the appellant and the opinion of PW.18 Dr. 15. The trial court after referring to the evidence i.e. statement of PW.6, namely, Shankar Singh, father-in-law of the appellant, photographs (Exhibit-P/5, P/11 and P/13), matrimonial discord between the couple on account of birth of a fully matured child within seven months of the marriage and for lack of any explanation by the appellant and the opinion of PW.18 Dr. Sageer Ahmed regarding the death not taking place due to child getting entangled in the rope of the cot, concluded that the charge against the appellant was proved beyond reasonable doubt. The prosecution mainly relied on the last seen theory. 16. PW.1-Geeta, a neighbour of the house, clearly indicated that she had gone to the house of Bhanwar Kanwar, where appellant Om Kanwar and Bhanwar Kanwar (PW.5), Jamna (PW.2) were present. The child of Om Kanwar was with Om Kanwar, she was hale and hearty and was playing in her lap. Whereafter, Om Kanwar indicated that she wants to sleep and went to sleep and the said witness left for her home (room) and in the evening she came to know that daughter of accused appellant has died. In the cross-examination, PW.1 denied any information about the matrimonial discord between Om Kanwar and her husband. 17. PW.2-Jamna, the next door neighbour, indicated that she was at the place of Bhanwar Kanwar, where Geeta Devi (PW.1), Bhanwar Kanwar (PW.5), accused Om Kanwar and her child were there; the child was in the lap of Om Kanwar and was playing. Whereafter Om Kanwar indicated that she wanted to sleep and went to her room for sleeping and the witness went to her house. Whereafter, she indicated that Om Kanwar come to her and told her to call her father-in-law as she does not understand/know what has happened to her child. Where upon, when Om Kanwar gave numbers and dialed the phone, she informed her father-in-law that the child was not well and, therefore, he should come home. Whereafter, she came to know that child is died. In her cross-examination also, nothing could be extracted so as to discredit her statement. 18. Where upon, when Om Kanwar gave numbers and dialed the phone, she informed her father-in-law that the child was not well and, therefore, he should come home. Whereafter, she came to know that child is died. In her cross-examination also, nothing could be extracted so as to discredit her statement. 18. PW.5-Bhanwar Kanwar, who is the elder sister of Chhagan Kanwar (PW.4), mother-in-law of the accused, and also her sister-in-law, as her husband was elder brother of Shankar Singh (PW.6), indicated that they live in same compound, where Shankar Singh alongwith accused Om Kanwar, Guddi and Chhagan Kanwar live, wherein, on the fateful day she along with Jamna (PW.2), Geeta (PW.1), Om Kanwar (accused) and Guddi were sitting, when Om Kanwar stated that she wanted to sleep, the child was playing in the lap of Om Kanwar. Whereafter Om Kanwar closed the door and after about two hours, told her to get up and see the child, who was lying on the floor and had turned cold. Whereafter Om Kanwar called her father-in-law and the child was immediately taken to Badu by the father-in-law and she was later on informed that Guddi has died. She alleged that Om Kanwar has murdered her. There was matrimonial discord between Om Kanwar and her husband. In her cross-examination, she was confronted with her statement recorded under Section 161 Cr.P.C., however, nothing material could be extracted. She on her own indicated that in the house of the accused there was no cot (‘ ekpk ’) and there was bed only. 19. Shankar Singh (PW.6), the first informant and father-in-law of the accused appellant, indicated that his son was married to the accused on 14.02.2009 and accused appellant gave birth to child Guddi, who was fully matured within seven months of the marriage. When he left the home, Guddi was hale and hearty and at about 04.30 pm, he received call from his neighbour, Jamna (PW.2) calling upon him to come soon as something had happened to Guddi. When, he came to the house he found that Guddi was lying on the floor, on touching her body it was found cold. Thereafter, when he went to Hathiram (PW.3), who came and touched the child and asked to take her to the doctor; whereafter he brought a jeep from the stand and took her to Badu hospital, where he was informed that child was already dead. Thereafter, when he went to Hathiram (PW.3), who came and touched the child and asked to take her to the doctor; whereafter he brought a jeep from the stand and took her to Badu hospital, where he was informed that child was already dead. He brought back the child home and informed his son and next day, took the body to police station. He alleged that there was matrimonial discord between his son and the accused, therefore, the child was killed by the accused. In the cross-examination, nothing was put to the witness pertaining to the fact that the child besides being healthy was not with the accused so as to discredit the aspect of last seen and it was only put to him that on account of matrimonial discord, his wife Chhagan Kanwar (PW.4) killed the child, which was denied. 20. PW.4-Chhagan Kanwar, mother-in-law of the accused appellant, in her statements indicated that that she had gone for attending a marriage at about 10-11 am and when she left Om Kanwar and Guddi, both were hale and hearty and she returned back at 06.00 pm, when none was at the home and when she asked Jamna and Bhanwar Kanwar, she was informed about the condition of Guddi and that she was taken to Badu. She reiterated what was indicated by Bhanwar Kanwar regarding the aspect of the child being with accused appellant Om Kanwar when she went to her room for sleeping and after two hours reported the condition of the child by then, the child was already dead. 21. PW.12 Dr. Sageer Ahmed, proved the postmortem report (Exhibit-P/7) wherein fracture at C-1, C-2 level and that of hyoid bone was indicated and it was indicated by way of opinion that the cause of death was asphyxia as a result of ante-mortem throttling. PW.14 Dr. Sunil Kumar Gaur, proved the photographs and report (Exhibit-P/10), indicating that some ligature marks were present on the front side of the neck but such type of marks were not present on the back side of the neck. PW.18-Dr. PW.14 Dr. Sunil Kumar Gaur, proved the photographs and report (Exhibit-P/10), indicating that some ligature marks were present on the front side of the neck but such type of marks were not present on the back side of the neck. PW.18-Dr. Sageer Ahmed was examined to prove the report (Exhibit-P/18), wherein on opinion being sought as to whether it was possible that death might have occurred on account of neck of the child getting entangled with the rope of the cot, he had opined that it does not appear that death took place due to child getting entangled with the ropes of the cot. In the cross-examination, he indicated that he gave report based on his experience. 22. The witnesses produced by the appellant viz. DW.1 Dayal Singh and DW.2 Surgyan Kanwar wife of Dayal Singh, who were nephew and wife of nephew of Shankar Singh, made allegations that Om Kanwar was being harassed for dowry and indicated that he has heard that child was killed. DW.1 further stated that he does not know who has killed, however, he has heard that grandmother killed and got a case registered against the appellant. In the cross-examination, he indicated that he has been called by Prithvi Singh, father of the accused. Similar statements were given by DW.2 Surgyan Kanwar. 23. From the evidence available on record, specially the statements of PW.1-Geeta, neighbour, PW.2-Jamna, another neighbourer and PW.5-Bhanwar Kanwar, it is firmly established that child Guddi, a five months’ old infant was hale and hearty and was playing with her mother, when all the four i.e. PW.1, PW.2, PW.5 and accused were together gossiping, when accused alongwith the child left for her room, which is within the same compound of the house of Bhanwar Kanwar for sleeping; and for the first time after about two hours, approached Bhanwar Kanwar (PW.5) indicating the status of the child and when Bhanwar Kanwar looked at the child, she was lying on the floor and had turned cold. In the statements, all the said three witnesses are consistent pertaining to their presence, status of the child and that the child was with the accused when she left them for her room. In the statements, all the said three witnesses are consistent pertaining to their presence, status of the child and that the child was with the accused when she left them for her room. Nothing could be brought in the cross-examination to disbelieve/discard the statements of said witnesses; rather no attempt was made to contradict the presence of said witnesses together at the point of time, the same was indicated by them and/or the child was not with the accused. As such, it is apparent that child Guddi was last seen hale and hearty with her mother i.e. accused appellant and they together went inside the room. Even otherwise, looking to the age of child i.e. five months, it is but natural that child was with the mother and in her lap only and it was the accused herself, who approached PW.5-Bhanwar Kanwar, who lived in the same compound, indicating her child’s condition, which was essentially after the child was already dead. 24. In view of above fact situation, the provisions of Section 106 of the Evidence Act would be clearly attracted, which requires that when any fact which is especially within the knowledge of any person, the burden to prove that fact is upon him. 25. The submissions made on the strength of judgment in the case of Boby (supra) that besides the plea of last seen, there is no other evidence available on record and, therefore, no conviction only on the basis of last seen theory could be sustained, the said principle in a given case, may be applied, wherein the accused and the deceased are not naturally likely to be together. However, in a case of present nature where the accused is the mother and deceased, her five months’ old child, heavy burden lies on her to explain the circumstances leading to the death of the child. 26. Hon’ble Supreme Court in Gajanan Dashrath Kharate vs. State of Maharashtra : (2016) 4 SCC 604 in a case where the allegations were against the son about causing death of his father, inter-alia, came to the following conclusion: “13 ...... When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of the occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime. (emphasis supplied) 14. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681 , it was held as under: (SCC pp.694-95, para 22) “22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of H.P. it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with “khukhri” and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra the appellant was prosecuted for the murder of his wife which took place inside his house. In Ganeshlal v. State of Maharashtra the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 CrPC. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of T.N. v. Rajendran the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.” Same view was reiterated by this Court in State of Rajasthan v. Parthu.” (emphasis supplied) 27. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.” Same view was reiterated by this Court in State of Rajasthan v. Parthu.” (emphasis supplied) 27. In Hari Ram vs. State of Rajasthan : 2015 Crl.L.J. 2097, wherein the allegations were against the husband, based on last seen, it was laid down that it was incumbent for the husband to disclose as to how his living wife had turned into corpse. 28. In view of judgments of Apex Court dealing with the cases pertaining to principle of last seen, wherein the allegations were against the close relatives i.e. son, husband etc. the said principle would have full application to the present case, wherein a child aged 5 months, who was with the mother, is found dead and no explanation worth the name is provided by the mother as to the cause of death and the post mortem report indicates the death due to asphyxia as a result of ante-mortem throttling and not a word has been uttered by the accused offering any explanation in her statement under Section 313 Cr.P.C. and the plea raised by way of cross-examination regarding the death of the child, due to child getting entangled in the ropes of the cot (‘ nkou ’), which plea also has not been put forth in the statement under Section 313 Cr.P.C., has been found base less in the medical opinion. 29. As such judgment relied on in the case of Boby (supra) by the counsel for the appellant, would have no application to the case in hand. 30. Upon appreciation of evidence, oral as well as documentary, and the circumstances of the case and conduct of the accused in not offering any explanation for the homicidal death of her five months’ child, the trial court has rightly convicted the appellant under Section 302 IPC and we do not find any reason to interfere with the judgment impugned. 31. In the result, the conviction of the appellant under Section 302 IPC with the sentence of life imprisonment imposed on her, is confirmed and the appeal is dismissed.