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 14.01.2022 passed by the learned Sessions Judge, Mungeli (C.G.) in Session Trial No. 20 of 2020 by which the appellant has been convicted for offence under Sections 302 of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life and fine of Rs. 1000/- with default stipulation. 2. Case of the prosecution, in brief, is that on 02.01.2020, complainant-Shivkumar Patel (PW-1) lodged a complaint at the Police Station, Jarhagaon, Mungeli alleging that his son namely: Ranjeet Patel (present appellant) was living separately in a house alongwith his wife namely: Jyoti Patel (PW-4) and two daughters. The present appellant is habitual drinker and has interest in sorcery (Tantra-mantra), due to which he was not in a good mental state. On 02.01.2020, at about 18.00 hours, he slit the throat of his younger daughter namely: Koyal @ Neelam aged about 12 months. On the basis of complaint of Shiv Kumar Patel (PW-1), the Police of Police Station Jarhagaon, Mungeli has registered the First Information Report (Ex.P/14). Investigation Officer left for scene of occurrence and after summoning the witnesses vide Ex.P/9, inquest over the dead body of deceased was prepared vide Ex.P/8. During investigation, spot map was prepared by Patwari vide Ex.P/2. 3. Dead body of the deceased was sent for postmortem to the District Hospital, Mungeli (C.G.) where Dr. Saumya Gourha (PW-15) conducted the postmortem vide Ex.P-24 and found following injuries: 1. The mouth was half open. The tongue was inside the mouth. Dried blood stains on the right side of the face and in the right ear. 2. There was stiffness after death in both hands and feet. 3. One cut wound to the depth of 12 x 3 cm. was present which was cut in the outer part of the neck up to the left jugular vein, left The carotid artery which was cut in the outer part backwards till the yacht and food pipe. A cut wound 5 cm above the chest. multiplied by half cm 4. One cut wound was found up to the chest depth of 1 cm. 5. A cut wound 3 x 1 x 0 cm deep in the right ankle. 6. A cut wound 5 cm above the chest. multiplied by half cm 4. One cut wound was found up to the chest depth of 1 cm. 5. A cut wound 3 x 1 x 0 cm deep in the right ankle. 6. There was a cut wound of size 8 x 1 x half cm from left wrist to left ear. All the above injuries are severe and the injury was caused by a sharp object and was prior to death. She opined that cause of death was due to deep cut throat injury due to profuse bleeding, the nature of death was homicidal and was within 12 to 24 hours from the date of examination. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. After investigation, it was found that Koyal @ Neelam died on account of deep cut throat injury due to profuse bleeding, by the accused/appellant Ranjeet Patel. The accused was arrested for offence under Section 302 of the IPC and arrest memo was prepared vide Ex.P/6. Thereafter, charge-sheet was filed before the Chief Judicial Magistrate, Mungeli, who in turn, committed the case to the Court of Sessions, Mungeli. 5. The accused/appellant abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as 15 witnesses and exhibited 25 documents. The defence has neither examined any witness nor 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 daughter, convicted and sentenced him under Section 302 of the IPC, against which the instant appeal under Section 374(2) of the Cr.P.C. has been preferred. 7. Mr. Santosh Bharat, learned counsel for the appellant vehemently argued that although conviction of the appellant is substantially based on the evidence of Shivkumar Patel (PW-1), who is the grand-father of the deceased and father of the accused/appellant, but his evidence does not inspire confidence and trust. He also submits that during trial, the other prosecution witnesses such as brothers of the appellant namely: Umashankar Patel (PW-2), Ramashankar Patel (PW-3) and wife of the appellant namely: Jyoti Patel (PW-4) have turned hostile and they have not supported the case of the prosecution. He also submits that during trial, the other prosecution witnesses such as brothers of the appellant namely: Umashankar Patel (PW-2), Ramashankar Patel (PW-3) and wife of the appellant namely: Jyoti Patel (PW-4) have turned hostile and they have not supported the case of the prosecution. He further submits that though the complainant is the father of the appellant and the FIR was lodged by him, other witnesses of the facts have turned hostile. He also submits that as per the statement of Shivkumar Patel (PW-1) who claims to have reached the place of occurrence on the information of the wife of the appellant that the appellant has closed the doors of the house, when he went there and found that the appellant was standing at the door of the house and when he opened the door, he found that her grand-daughter was lying in a dead condition. He also submits that no one has seen the incident that it was the appellant who only has committed the murder of his daughter and as such, the appellant has been falsely implicated in the crime in question. The trial Court, without there being any cogent evidence against the appellant, has convicted and sentenced him, therefore, the appellant is entitled to be acquitted in the present case. 8. On the other hand, Mr. Gurudev I. Sharan, learned Government Advocate, appearing for the respondent/State, supports the impugned judgment and submits that the appellant is the father of the deceased aged about one year was done to death by the appellant by assaulting with a sharp edged object (sickle). He also submits that the appellant was found at the place of occurrence i.e. in the house which is apparent from the evidence of the Shivkumar Patel (PW-1) and Jyoti Patel (PW-4) who is father and the wife of the appellant respectively. Though the wife of the appellant has turned hostile but in her cross-examination, she states that at the time of occurrence, the appellant was inside the room where the incident had taken place and when she asked the appellant, he did not open the same. Thereafter, she went to call her father-in-law when they came in the house and again asked the appellant to open the door, the appellant opened the door upon which they saw that the deceased was lying on the floor of the room in a pool of blood. Mr. Thereafter, she went to call her father-in-law when they came in the house and again asked the appellant to open the door, the appellant opened the door upon which they saw that the deceased was lying on the floor of the room in a pool of blood. Mr. Sharan further submits that the appellant has not given proper explanation regarding the death of the deceased. Moreover, soon after the incident, the police came to the house of the appellant and found that the appellant has committed the murder of the deceased. He again submits that the blood-stained shirt of the appellant along-with sickle were also recovered and as per FSL report (Ex. P/20 & 21), human blood was found on the shirt as well as on sickle, which is another circumstance to show that the appellant has committed the murder of his daughter. Therefore, the trial Court has rightly convicted the appellant for offence under Section 302 of the IPC and therefore, the appeal deserves to be dismissed. 9. 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. 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 Koyal @ Neelam was homicidal in nature? 12. The trial Court, relying upon the statement of Dr. Saumya Gourha (PW-15), who has conducted postmortem on the body of deceased, Koyal @ Neelam, vide Ex.P/24, has clearly come to the conclusion that death of deceased Koyal @ Neelam was homicidal in nature due to massive bleeding shock and hemorrhage due to deep incised cut throat 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 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/24) of Dr. Saumya Gourha (PW-15) who conducted postmortem and opined that the cause of death was due to massive bleeding shock and hemorrhage due to deep incised cut throat injury. (ii) As per the case of the prosecution, the fact of death of deceased Koyal @ Neelam 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 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. 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. 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. 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. 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. 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 principles 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 massive bleeding shock and hemorrhage due to deep incised cut throat injury has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Shivkumar Patel (PW-1), Investigating Officer Kavita Dhurve (PW-14), FIR (Ex.P/14), Dr. Saumya Gaurha (PW-15) and the postmortem report (Ex.P/24) that the death of deceased Koyal @ Neelam 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 Shivkumar Patel (PW-1), Investigating Officer Kavita Dhurve (PW-14) and Dr. Saumya Gourha (PW-15). 23. Shivkumar Patel (PW-1) is the grandfather of the deceased and father of the appellant. In para-1 of his evidence, he has stated that he was living separately with the appellant and on the date of incident, at about 8.00 pm his daughter-in-law came to his house and told that the appellant was not opening the door of the room, thereafter, he went alongwith his daughter-in-law to the house of the accused/appellant and asked the appellant to open the door, when the appellant opened the door, he saw that the appellant is standing at the door and his grand-daughter-Koyal @ Neelam was lying on the floor in a dead condition. Thereafter, on being informed by someone, the police came to the house of the appellant and thereafter report has been lodged at the Police Station, Jarhagaon, Mungeli (C.G.). 24. Investigating Officer Kavita Dhurve (PW-14) has stated in her evidence that she was posted as Station House Officer in the year 2019 to 2020 at Police Station, Jarhagaon. On 02.01.2020. Thereafter, on being informed by someone, the police came to the house of the appellant and thereafter report has been lodged at the Police Station, Jarhagaon, Mungeli (C.G.). 24. Investigating Officer Kavita Dhurve (PW-14) has stated in her evidence that she was posted as Station House Officer in the year 2019 to 2020 at Police Station, Jarhagaon. On 02.01.2020. On the basis of report lodged by Shivkumar Patel (PW-1), Merg Intimation (Ex.P-17) was registered and on the basis of merg intimation, FIR (Ex. P14) under the Crime No. 01/2020 was registered for the offence under Section 302 of the Indian Penal Code against the accused/appellant-Ranjeet Patel. 25. Dr. Saumya Gourha (PW-15) conducted postmortem vide Ex.P/24 and found cut injuries on the neck of the deceased and opined that death of deceased Koyal @ Neelam was homicidal in nature due to massive bleeding shock and hemorrhage due to deep incised cut throat injury. 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 20 and 31 of the judgment are as under: ^^¼20½ bl Ádj.k esa vfHk;kstu dh vksj ls ÁLrqr ifjfLFkfrtU; lk{; ij fopkj djsa] rc vfHk;kstu dh vksj ls ?kVukLFky vfHk;qDr dk dejk gksuk crk;k x;k gS rFkk vfHk;qDr vius cUn dejs esa e`frdk dh e`R;qdkfjr dh x;h gS rFkk vfHk;qDr ,oa e`frdk thfor voLFkk esa ,d lkFk dejs esa Fks rFkk mlds ckn e`frdk dh xyk dVus ls e`R;q gqbZ gSA ,slh fLFkfr esa Hkkjrh; Lkk{; vf/kfu;e dh /kkjk 106 ds varZxr vfHk;qDr dk ;g nkf;Ro gS fd og bl laca/k esa Li"Vhdj.k ÁLrqr djsa fd e`frdk dh e`R;q dSls gqbZ rFkk bl laca/k esa vfHk;qDr dh vksj ls vius vfHk;qDr ijh{k.k esa dksbZ Li"Vhdj.k ugha fn, x,] ls Áfrikfnr fl}karksa ds vuqlkj vfHk;qDr ds }kjk gh gR;kdkfjr fd;k tkuk Áekf.kr ekuk tkrk gSA ¼31½ bl laca/k esa naŒÁŒlaŒ dh /kkjk 313 ds varZxr fn, x, dFku dk voyksdu djs rks vfHk;qDr >wBk Qalkus dk dFku djrk gS rFkk bldh iq=h dh e`R;q dSlh gqbZ bl laca/k es ekSu gS fdlh Hkh rjg dk dksbZ Li"Vhdj.k ugha fn;k x;k gSA Á’u Øekad 12 esa vfHk;qDr viuh iq=h dh e`R;q gks tkus dks lgh gksus Lohdkj djrk gS] fdUrq Á’u Øekad 52] 53 esa vkbZ pksV ds laca/k esa ugha tkurk crkrk gSA bl laca/k esa ;g mYYks[kuh; gS ftldh vYiOk; vcks/k ckfydk dh e`R;q vFkok gR;k gks tk, vkSj mldh e`R;q vFkok gR;k dSls gqbZ] mlds firk dks tkudkjh ugha gS] ;g lkekU; :i ls ugha ekuk tk ldrkA vfHk;qDr dh vksj ls vius ijh{k.k esa ,slk dksbZ Hkh dFku vFkok Li"Vhdj.k ugha fn;k x;k gS fd mldh iq=h dks;y mQZ uhye dh e`R;q dSls gqbZA ,Slh fLFkfr esa ekuuh; mPPkre~ U;k;ky; ,oa ekuuh; mPPk U;k;ky; }kjk ikfjr mijksDr U;k; n`"Vkarks ds ifjÁs{; esa vfHk;qDr ds }kjk viuh iq=h dh gR;k fd;k tkuk Áekf.kr gksrk 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 Koyal @ Neelam was homicidal in nature. 2. on the date of offence, the appellant and the deceased were staying in the same room. 3. A careful perusal of the aforesaid findings recorded by the trial Court would show that the prosecution has established that: 1. death of deceased Koyal @ Neelam 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 his daughter by caused her deep incised cut throat injury. 30. Considering the statements of the prosecution witnesses, the finding recorded by the trial Court in para-20 and 31 of its judgment, the fact that the appellant has not offered any explanation under Section 313 of the Cr.P.C. and considering the statement of Shivkumar Patel (PW-1) disclosing the fact of the accused/appellant having assaulted by the sickle and the deceased by caused her deep incised cut throat injury, therefore, the act of the accused/appellant clearly shows the intention of the accused/appellant to kill his daughter (deceased). For this reason, it is clearly and reliably shown that it was the accused/appellant, who caused the death of the deceased by causing her deep cut injury as aforesaid. In addition to this, it is also notable that the evidence shows that the deceased was the daughter of the appellant and resided together. In such a circumstance, 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, no defence on the part of the accused/appellant has been taken during the examination under Section 313 Cr.P.C. 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. He 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.