JUDGMENT : RAMESH SINHA, J. 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 21.12.2021 passed by the learned Additional Sessions Judge (FTC), South Bastar Dantewada (C.G.) in Session Trial No. 90 of 2017 by which the appellant has been convicted for offence under Sections 302 of the Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for life. 2. Case of the prosecution, in brief, is that on 08.07.2016 complainant Choppi Hemla (PW-1) lodged a complaint in the Police State alleging that on 07.07.2016 in the night at about 11.00 p.m. his mother-in-law namely, Aayati Kursa @ Ursa, who lives beside his house, came to his house and asked for torch saying that some incident has been happened with his father-in-law, then the complainant also followed the accused/appellant and reached her house and saw that his father-in-law was lying down on the floor. The accused/appellant informed him that she was consuming liquor with the deceased and there was some quarrel occurred between them, then she pressed the neck of the deceased due to which he died. On the basis of complaint of Choppi Hemla (PW-1), the Police of Police Station Gangalur, District Bijapur has registered the First Information Report (Ex.P/12). Investigation Officer left for scene of occurrence and after summoning the witnesses vide Ex.P/2, inquest over the dead body of deceased was prepared vide Ex.P/3. During investigation, Spot map was prepared vide Ex.P/9. His memorandum statement was recorded vide Ex.P/1. 3. Dead body of the deceased was sent for postmortem to the Community Health Centre, Gangalur, District Bijapur (C.G.). Dr. Shailendra Kumar (PW-7) conducted postmortem vide Ex.P-10 and found following injuries: (i) Nail marks were found in three to seven places on the right side, four to eight places on the left side, the size and shape of which were different. (ii) The size of the nail mark was 1 x 1.5 x 1.2 x 1.3 cm on the right and ½ x ¼ x 1/3 x ¼ cm on the left. (iii) Neck bone fracture. (iv) On the left side of the head there was a scratch and swelling, the size of the scratch was 1 x 2 x ½. (v) On internal examination, a fracture was found in the trachea. No other injuries were found in the internal organs. (iii) Neck bone fracture. (iv) On the left side of the head there was a scratch and swelling, the size of the scratch was 1 x 2 x ½. (v) On internal examination, a fracture was found in the trachea. No other injuries were found in the internal organs. He opined that cause of death was Asphyxia caused by throttling and death was homicidal in nature. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. After investigation, it was found that Sonu Kursa died on account of Asphyxia caused by throttling by the accused/appellant Aayati Kursa @ Ursa. The accused was arrested for offence under Section 302 of the IPC and arrest/court surrender memo was prepared vide Ex.P/15. Thereafter, charge-sheet was filed before the Additional Sessions Judge (FTC), South Bastar Dantewada (C.G.) 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 09 witnesses and exhibited 15 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 her husband, convicted and sentenced her under Section 302 of the IPC, against which the instant appeal under Section 374(2) of the Cr.P.C. 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. Bulbul Agrawal, learned counsel for the appellant vehemently argued that although conviction of the appellant is substantially based on the evidence of Choppi Hemla (PW-1), who is son-in-law of the deceased and accused/appellant, but his 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 accused/appellant consuming liquor with the deceased and on a dispute with her husband, in a heat of passion, strangulated the deceased due to which deceased died. 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. She further submits that the accused/appellant consuming liquor with the deceased and on a dispute with her husband, in a heat of passion, strangulated the deceased due to which deceased died. 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, Mr. Wasim Miyan, learned Panel Lawyer, appearing for the respondent/State, supports the impugned judgment and submits that Choppi Hemla (PW-1), who is the son-in-law of the deceased and accused/appellant, has stated in his evidence that on the date of incident the accused/appellant came to his house and said that she has killed the deceased, thereafter, he went to her house and saw that the deceased was lying down on the floor and has died. The accused/appellant has failed to explain the death of her husband. The FIR of the incident was lodged by Choppi Hemla (PW-1) son-in-law of the accused/appellant. He 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 Sonu Kursa was homicidal in nature? 12. The trial Court, relying upon the statement of Dr. Shailendra Kumar (PW-7), who has conducted postmortem on the body of deceased Sonu Kursa, vide Ex.P/10, has clearly come to the conclusion that death of deceased Sonu Kursa was homicidal in nature due to strangulation. 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 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/10) of Dr. Shailendra Kumar (PW-7) who conducted postmortem. (ii) As per the case of the prosecution, the fact of death of deceased Sonu Kursa 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 Cr.P.C. Thus, burden of proof was on the appellant to explain such circumstance, which she 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. 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 vs. 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. 17. In the matter of Shambhu Nath Mehra vs. 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 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 vs. The King, 1936 PC 169 (AIR V 23) and Seneviratne vs. R. 1936 (3) ER 36.” 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. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah vs. 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. 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 vs. State of Punjab, AIR 1956 SC 460 while considering the provisions contained in Sections 103 and 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 vs. 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 strangulation has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Choppi Hemla (PW-1), Investigating Officer Sushil Kumar Tripathi (PW-8), FIR (Ex.P/12), Dr. Shailendra Kumar (PW-7) and the postmortem report (Ex.P/10) that the death of deceased Sonu Kursa 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 Choppi Hemla (PW-1), Investigating Officer Sushil Kumar Tripathi (PW-8) and Dr. Shailendra Kumar (PW-7). 23. Choppi Hemla (PW-1) is the son-in-law of the deceased and appellant. In Para-9 of his evidence, he stated that my father-in-law was killed by my mother-in-law. On the date of incident, in the morning the accused/appellant came to him and said that she had killed her husband, then he took Pandu Hemla (PW-2) with him and went to the house of the accused/appellant and saw the dead body of the deceased Sonu Kursa was lying in the house of the accused/appellant. On enquiry, the accused/appellant told that she and her husband had a fight in the night under the influence of alcohol. After that he went to the Police Station with Pandu Hemla (PW-2) and lodged a report of the incident in the Police Station Ganglur, District Bijapur (C.G.). 24. Investigating Officer Sushil Kumar Tripathi (PW-8) has stated that he was posted as Sub-Inspector from November, 2015 to June, 2017 in Police Station, Gangalur. After that he went to the Police Station with Pandu Hemla (PW-2) and lodged a report of the incident in the Police Station Ganglur, District Bijapur (C.G.). 24. Investigating Officer Sushil Kumar Tripathi (PW-8) has stated that he was posted as Sub-Inspector from November, 2015 to June, 2017 in Police Station, Gangalur. On 08.07.2016 at 9.10 a.m. Choppi Hemla (PW-1) lodged a complaint in the Police Station alleging that on 07.07.2016, I was sleeping after having dinner with my wife and brother-in-law, then at 11.00 p.m. my mother-in-law namely, Aayati, who lives beside his house, came to his house and asked for torch saying that some incident has been happened with his father-in-law, then the complainant along with his wife was also followed the accused/appellant and saw that my father-in-law was lying on the ground outside the door of his house, after which when I asked my mother-in-law, she told that both of us were drinking, we had a fight while drinking, in which I strangulated him and he died. On the report of Choppi Hemla (PW-1), Merg Intimation (PW-11) was taken in Panchnama proceedings. On the report of Choppi Hemla (PW-1), Crime No. 13/2016 (Ex.P/12) was registered by me for the offence under Section 302 of the Indian Penal Code against the accused/appellant-Aayati Kursa @ Ursa. On 08.07.2016 notice was given to the witnesses for Panchnama regarding the death of deceased Sonu Kursa which is Ex.P/2. After notice to the witnesses, the site of the incident was inspected on the said date itself, the site of the incident is the house of the deceased located in Kotiyar Para, Gangalur, the body of the deceased is located in the courtyard of the house near the door of the house, in relation to which the inquest report (Ex.P/3) has been prepared before the witnesses. On the spot on 08.07.2016 at 10.30 a.m. a spot map (Ex.P/13) was prepared by me. Postmortem application (Ex.P/14) for the body of the deceased was prepared and the body was sent to Community Health Centre, Gangalur, District Bijapur (C.G.). On 03.10.2017, the accused Aayati Kursa @ Ursa was arrested in the presence of witnesses and the arrest/Court surrender memo (Ex.P/15) was prepared. 25. Dr. Postmortem application (Ex.P/14) for the body of the deceased was prepared and the body was sent to Community Health Centre, Gangalur, District Bijapur (C.G.). On 03.10.2017, the accused Aayati Kursa @ Ursa was arrested in the presence of witnesses and the arrest/Court surrender memo (Ex.P/15) was prepared. 25. Dr. Shailendra Kumar (PW-7) conducted postmortem vide Ex.P/10 and found above stated 05 injuries on the person of the deceased and opined that cause of death was Asphyxia caused by throttling and death was homicidal in nature. 26. 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 vs. 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. (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.” 27. 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? 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? 28. In this regard, the findings of the trial Court recorded in paragraph 14 of the judgment are as under: ^^14- mijksDr vuqlkj mijksDr U;kf;ddsRrj laLohd`fr dk Ádj.k esa vfHk;kstu }kjk vlafnX/k :i ls Áekf.kr fd;k tkuk nf'kZr gS] ftlds vk/kkj ij vfHk;qDrk }kjk gh e`rd dk xyk nckdj mijksDrkuqlkj gR;k fd;s tkus dk rF; nf'kZr gSA lk{kh pksIih gseyk vŒlkŒ 1 }kjk 'kjkc dk lsou dj mijksDr n'kk esa >xM+s ds nkSjku ekjihV esa e`rd ds lkFk ekjihV fd;s tkus rF; vfHk;qDrk }kjk ÁdV fd;s tkus dk rF; vfHk;qDrk }kjk ÁdV fd;s tkus dk RkF; Hkh fd;k x;k gSA bl dkj.k vfHk;qDrk }kjk e`rd ds xys ij vfHk;qDrk }kjk bl Ádkj dk fd;k x;k geyk vfHk;qDrk dk e`rd dh gR;k djus dk vk'k; Hkh Li"V :i ls n'kkZrk gSA bl dkj.k Ádj.k esa ;g vlafnX/k ,oa fo'oluh; nf'kZr gS fd vfHk;qDrk us gh e`rd dh mijksDrkuqlkj xyk nckdj gR;kdkfjr dh] blds vfrfjDr ;g Hkh mYys[kuh; gS fd] e`rd dk vfHk;qDrk dk ifr gksuk vkSj ,d lkFk fuokl fd;k tkuk lk{; ls mijksDrkuqlkj ÁdV gS] ,slh n'kk esa e`rd ds xys ij ikbZ xbZ mijksDr vuqlkj pksVksa ds dkj.k mldh e`R;qdkfjr gksus ds rF; dk Kku vfHk;qDrk ds e`rd ds lkFk gh fuokl fd;s tkus ds dkj.k fof'k"V Kku dk rF; gS ,oa bl lca/k esa vfHk;qDrk dh vksj ls Áfrj{kk vFkok Áfrijh{kk ds nkSjku dksbZ cpko ugha fy;k x;k gSA bl dkj.k Hkh mijksDr vuqlkj lk{; ls ÁdV rF; Ádj.k esa fo'oluh; ,oa vlafnX/k fu"dkf"kZr gSA** 29. A careful perusal of the aforesaid findings recorded by the trial Court would show that the prosecution has established that: 1. death of deceased Sonu Kursa was homicidal in nature. 2. on the date of offence, the appellant and the deceased were staying in the same room. 3. it is the appellant who has murdered her husband by strangulation. 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 Sonu Kursa was homicidal in nature. 2. on the date of offence, the appellant and the deceased were staying in the same room. 3. it is the appellant who has murdered her husband by strangulation. 30. Considering the statements of the prosecution witnesses, the finding recorded by the trial Court in Para-14 of its judgment, the fact that the appellant has not offered any explanation under Section 313 of the Cr.P.C. and considering the statements of Choppy Hemla (PW-1) disclosing the fact of the accused/appellant assaulting the deceased during a fight after consuming alcohol, has also been revealed, therefore, the act of the accused/appellant by pressing the neck of the deceased clearly shows the intention of the accused/appellant to kill the deceased. For this reason, it is clearly and reliably shown that it was the accused/appellant, who caused the death of the deceased by throttling as aforesaid, in addition to this, it is also notable that the evidence shows that the deceased was the husband of the accused and resided together, in such a case, the knowledge of the fact that the deceased died due to the injuries found on the neck of the deceased as aforesaid, is a fact of specific knowledge due to the accused residing with the deceased, and in this regard, there is no defence on the part of the accused/appellant has been taken during the examination and therefore, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted the accused/appellant for the offence under Section 302 of the IPC. We do not find any illegality or irregularity in the findings recorded by the trial Court. 31. For the foregoing reasons, the criminal appeal being devoid of merit and is liable to be and is hereby dismissed. 32. It is stated at the Bar that the appellant is in jail, she shall serve out the sentence as ordered by the learned trial Court. 33. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.