JUDGMENT : Ramesh Sinha, J. 1. This criminal appeal preferred under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 25.11.2021 passed by the learned Additional Sessions Judge, Special Court (Naxal), Dantewada District–South Bastar, Dantewada in Sessions Trial No. 217/2018 by which the appellant has been convicted for offence under Sections 302 of the IPC and sentenced to undergo rigorous imprisonment for life. 2. Case of the prosecution, in brief, is that on the date of incident i.e., 25.03.2018 at 07.00 am, Pradeep and Rakesh, the children of Paikuram Kashyap’s cousin accused Maniram Kashyap, came to Badi and told that at night, father Maniram had assaulted mother Palo Bai with Mushar (Okhli) on her head and back and she was seriously injured. On the report of the applicant Paiku Ram Kashyap (PW-1), cousin brother of the accused/appellant, Police Station, Dantewada has registered unnumbered First Information Report (Ex.P–01). Since the incident was of Geedam Police Station, First Information Report (Ex. P-08) was registered there. Investigating officer left for scene of occurrence and after summoning the witnesses vide Ex.P-02, inquest over the dead body of deceased was prepared vide Ex.P-03. During the investigation, Spot map was prepared vide Ex. P-05, bloodstained soil and plain soil were recovered from the spot vide Ex.P-03. His memorandum statement was recorded vide Ex.P-01 and at his instance recovery of Mushar (Okhli) was made vide Ex.P-02. 3. Dead body of the deceased was sent for autopsy to the Maharani Hospital, Jagdalpur vide Ex.P-9. Dr. Kailashkar Shashikant (PW- 12) conducted autopsy vide Ex.P-9 and found following injuries :- (i) Abrasion, dark brown scab around the lateral margin of right orbital region, 5 cm anterior to right ear of size 4 cm x 3 cm. (ii) Laceration of lateral margin of left orbital region, approximated by 5 surgical stitches, margins are contused of length 4 cm and muscle deep. (iii) Abrasion, dark brown scab with underlying muscle contusion on left fact, 2 cm anterior to ear of size 8 cm x 7 cm. (iv) Laceration with contused margins on left side of inferior margin of mandible region, 3 cm left to chin, of size 2 cm x 0.5 cm and muscle deep. (v) Contusion of scalp on left temporo occipital area, of size 15 cm x 6 cm with underlying muscle contusion. (iv) Laceration with contused margins on left side of inferior margin of mandible region, 3 cm left to chin, of size 2 cm x 0.5 cm and muscle deep. (v) Contusion of scalp on left temporo occipital area, of size 15 cm x 6 cm with underlying muscle contusion. (vi) Sub dural haematoma on left occipital area, of amount approximately 20 ml. (vii) Diffuse subarachnoid haemorrhage on all surfaces of brain. He opined that cause of death was due to head injury and death was homicidal in nature. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After investigation, it was found that Palo Bai died on account of injuries sustained on her head with Mushar (Okhli) by the accused Maniram. The accused was arrested for offence under Section 302 of the IPC and arrest/court surrender memo was prepared vide Ex.P-04. Thereafter, charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions from where the Additional Sessions Judge, Special Court (Naxal), Dantewa received the case on transfer for hearing and disposal in accordance with law. 5. The accused/appellant abjured the guilt and entered into witness. In order to bring home the offence, the prosecution examined as many as 12 witnesses and exhibited 10 documents. The defence has neither examined any witness nor has exhibited any document. 6. The trial Court upon appreciation of oral and documentary evidence on record and considering that it is the appellant who has committed the murder of his wife, convicted and sentenced him under Section 302 of the IPC, against which the instant appeal under Section 374(2) of the CrPC has been preferred. 7. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the trial Court with utmost circumspection and carefully as well. 8. Ms. Usha Chandrakar, learned counsel for the appellant vehemently argued that although conviction of the appellant is substantially based on the evidence of Ku. Sumitra Kashyap (PW-3) and Rakesh Kashyap (PW-4), daughter and son of the deceased and accused/appellant, but their evidence does not inspire confidence and not trustworthy, their evidence is not safe for placing reliance in absence of any corroboration from independent source. Sumitra Kashyap (PW-3) and Rakesh Kashyap (PW-4), daughter and son of the deceased and accused/appellant, but their evidence does not inspire confidence and not trustworthy, their evidence is not safe for placing reliance in absence of any corroboration from independent source. She further submits that the appellant came to house on drunken condition and on a dispute with wife, in a heat of passion, assaulted the deceased with Mushar (Okhli). Thereafter, she was taken to hospital and after 05 days of the incident she died at hospital. Therefore, even if the entire case is taken at its face value, the case would not travel beyond Section 304 Part-II of the IPC. Evidence adduced on behalf of the prosecution is suspicious in nature and same is not safe for placing reliance that too for conviction of the appellant for commission of heinous offence of murder, therefore, the appellant is entitled for benefit of doubt. 9. On the other hand, Ms. Madhunisha Singh, learned Deputy Advocate General, appearing for the respondent/State, supports the impugned judgment and submits that Ku. Sumitra Kashyap (PW-3) and Rakesh Kashyap (PW-4), daughter and son of the deceased and accused/appellant, have stated in their evidence that on the date of incident at night only their mother deceased Palo Bai and their father accused Maniram Kashyap were present at home and on the morning dead body of the deceased was found from the home of accused/appellant. The appellant has failed to explain the cause of death of his wife. The FIR of the incident was lodged by cousin brother of the appellant. She contended that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence under Section 302 of the IPC and therefore, the appeal deserves to be dismissed. 10. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 11. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased Palo Bai was homicidal in nature ? 12. The trial Court, relying upon the statement of Dr. 11. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased Palo Bai was homicidal in nature ? 12. The trial Court, relying upon the statement of Dr. Kailashkar Shashikant (PW-12), who has conducted postmortem on the body of deceased Palo Bai vide Ex.P-09, has clearly come to the conclusion that death of deceased Palo Bai was homicidal in nature due to head injury. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellant. We hereby affirm the said finding. 13. The next question for consideration would be, whether the trial Court has rightly held that the appellant is author of the crime by relying upon the following circumstances:- (i) Homicidal death was proved by the prosecution as per postmortem report (Ex.P-09) of Dr. Kailashkar Shashikant (PW-12) who conducted autopsy. (ii) As per the case of the prosecution, the fact of death of deceased Palo Bai was within the knowledge of the appellant, however, there was no any explanation given by the appellant in his statement under Section 313 of the CrPC. Thus, burden of proof was on the appellant to explain such circumstance, which he failed to explain. 14. Now, the question would be, whether Section 106 of the Evidence Act would be applicable or not? 15. Section 106 of the Indian Evidence Act, 1872, states as under: - “106. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 16. This provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 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 other side. The principle underlying Section 106 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 other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned. 17. In the matter of Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404 , their Lordships of the Supreme Court have held that the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution, to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The Supreme Court while considering the word “especially” employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J., observed as under: - “11. … The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P.49 (B).” Their Lordships further held that Section 106 of the Evidence Act cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts. 18. 18. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar, (2021) 10 SCC 725 in which it has been held by their Lordships of the Supreme Court as under: - “22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference. 23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.” 19. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab, AIR 1956 SC 460 , while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him. 20. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him. 20. The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar, AIR 1974 SC 778 and it has been held that burden of proving the case against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence. 21. In the present case, homicidal death as a result of head injury on the head of deceased Palo Bai has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Paiku Ram Kashyap (PW-1), Shambhu Kashyap (PW-2), Ku. Sumitra Kashyap (PW-3), Rakesh Kashyap (PW-4), Investigating Officer Parmanand Thakur (PW-10), FIR (Exs.P-1 & P-8), Dr. Kailashkar Shashikant (PW-12) and autopsy report (Ex.P-9) that the death of deceased Palo Bai was homicidal in nature. 22. As regards complicity of the appellant in crime in question, conviction of the appellant is substantially based on the evidence of Ku. Sumitra Kashyap (PW-3), Rakesh Kashyap (PW-4), Investigating Officer Parmanand Thakur (PW-10) and Dr.Kailashkar Shashikant (PW-12). 23. Ku. Sumitra Kashyap (PW-3) is the daughter of the deceased and appellant. In para-5 of her evidence, she has stated that my mother was killed by my father. On the date of incident his father, appellant, came to house in drunken condition. After drinking, my father used to become crazy, because of which she went to the house of elder father Paiku and slept at night. His brother Rakesh, Vishwanath and Ramesh also slept in the house of elder father. Only mother and father were in our house at night. On the next day in the morning it was found that the father had killed the mother. My mother was lying unconscious on the ground. My mother had a head injury and blood was coming out from there. My mother was taken to hospital and she died in the hospital. 24. Rakesh Kashyap (PW-4) is the son of the deceased and the appellant. In para-5 of his evidence he has stated that Palo Bai was my mother. My mother was killed by my father. My mother had a head injury and blood was coming out from there. My mother was taken to hospital and she died in the hospital. 24. Rakesh Kashyap (PW-4) is the son of the deceased and the appellant. In para-5 of his evidence he has stated that Palo Bai was my mother. My mother was killed by my father. On the night of date of incident his father was behaving like a madman, due to which we brothers and sisters slept at uncle Paiku’s house. In para-6, he has stated that only mother and father were in our house at night. When he went to home on the next day in the morning he saw that his father had killed his mother. My mother was lying unconscious on the ground. My mother had a head injury and blood was coming out from there. My mother was beaten by mushal used to grind chutney. When I went to my uncle Paiku and told him about this incident, he came home. My uncle Paiku slept in the field at night. Thereafter, the people of village also came and took the mother to hospital. My mother died in the hospital. 25. Investigating Officer Parmanand Thakur (PW-10) has stated he was posted as Sub-Inspector from April 2017 to July 2018 in Police Station, Geedam. During investigation of Crime No. 16/18 of Police Station Geeman, on 26.04.2018, he went to the place of occurrence Bade Karli Jangalpara. In front of the witnesses Sundar Kashyap and Borga Attara from the house of the accused Maniram Kashyap, 200-200 grams of the bloodstained soil of the deceased Palo Bai and the plain soil were taken and it was sealed in a plastic box. In this regard, property confiscation sheet was prepared by him vide Ex.P-03. He further states that while interrogating the accused Maniram Kashyap, he told him that he himself had killed his wife Palo Bai by hitting her on the head with a wooden Mushal and has kept that Mushal hidden near the door of his house, which he had said that he would recover it after walking. The memorandum statement written by him is Ex.P-01. After that accused Maniram picked up the Mushal kept in the corner of the door from his house and presented it, then he seized that mushal and prepared property confiscation sheet vide Ex.P-02. 26. Dr. The memorandum statement written by him is Ex.P-01. After that accused Maniram picked up the Mushal kept in the corner of the door from his house and presented it, then he seized that mushal and prepared property confiscation sheet vide Ex.P-02. 26. Dr. Kailashkar Shashikant (PW-12) conducted autopsy vide Ex.P-9 and found above stated 07 injuries on the person of the deceased and opined that cause of death was due to head injury and death was homicidal in nature. 27. It is the case of no direct evidence, rather conviction is based on circumstantial evidence. Five golden principles which constitute Panchseel of proof of case based on circumstantial evidence have been laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , which state as under :- “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 28. Now, the question is, whether the prosecution has discharged its initial or general burden or primary duty of proving the guilt of the accused beyond reasonable doubt? 29. Now, the question is, whether the prosecution has discharged its initial or general burden or primary duty of proving the guilt of the accused beyond reasonable doubt? 29. In this regard, the findings of the trial Court recorded in paragraph 26 of the judgment are as under: - ^^26- bl izdkj vfHk;kstu }kjk izLrqr mijksDr lk{; esa vfHk;qDr euhjke d';i ls vijk/k esa mi;ksx dh xbZ ydM+h ds eqly dks tIr fd;k tkuk izekf.kr fd;k x;k gS rFkk e`frdk ikyks ckbZ dh flj esa vkbZ pksV ls e`R;q gksuk fpfdRld lk{kh dkSykldj 'kf'kdkar ¼v-lk-12½ ds lk{; ls izekf.kr gS A ijarq vfHk;kstu }kjk izLrqr fdlh Hkh lk{kh ds dFku esa ;g lk{; ugha gS fd] os vfHk;qDr euhjke d';i dks ikyks ckbZ dks ekjrs gq;s ns[ks gksa A tcfd e`frdk ikyks ckbZ ds iq=h ,oa iq= dqekjh lqfe= d';i ¼v-lk-03½ ,oa jkds'k d';i ¼v-lk-04½ us vius lk{; esa crk;s gSa fd] ?kVuk dh jkr esa dsoy ekWa ,oa firkth Fks] bl izdkj bl ekeys esa ?kVuk ds p{kqn'khZ lk{kh dksbZ ugha gS A ,slh fLFkfr esa vc fopkj fd;k tkuk gS fd] D;k Hkkjrh; lk{; vf/kfu;e dh /kkjk 106 mDr ekeys esa vkdf"kZr gksrh gS] bl iz'u ds fujkdj.k ls igys ;g foospu djuk vko';d gS fd] Hkkjrh; lk{; vf/kfu;e dh /kkjk 106 ls lacaf/kr fof/kd fLFkfr D;k gS A** 30. A careful perusal of the aforesaid findings recorded by the trial Court would show that the prosecution has established that, 1. death of deceased Palo Bai was homicidal in nature; 2. on the date of offence, the appellant & the deceased were staying in the same room ; and 3. it is the appellant who has murdered his wife by hitting on her head and back with Mushar (Okhli). 31. Considering the statements of the prosecution witnesses, the finding recorded by the trial Court in para-26 of its judgment, the fact that the appellant has not offered any explanation under Section 313 of the CrPC and considering the statements of Ku. 31. Considering the statements of the prosecution witnesses, the finding recorded by the trial Court in para-26 of its judgment, the fact that the appellant has not offered any explanation under Section 313 of the CrPC and considering the statements of Ku. Sumitra Kashyap (PW-3), Rakesh Kashyap (PW-4), who have stated that their mother was killed by their father, on the date of incident only deceased and appellant were in our house at night and on the next day in the morning, the deceased found was lying unconscious on the ground and she had a head injury and blood was coming out from there, thereafter, she was taken to hospital where she died, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence under Section 302 of the IPC. We do not find any illegality or irregularity in the findings recorded by the trial Court. 32. For the foregoing reasons, the criminal appeal being devoid of merit is liable to be and is hereby dismissed. 33. It is stated at the Bar that the appellant is in jail, he shall serve out the sentence as ordered by the learned trial Court. 34. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.