ORDER : Ramesh Sinha, J. 1. The appellant has preferred this appeal under Section 374(2) of Cr.P.C. questioning the impugned judgment dated 10.12.2021 passed in Sessions Trial No.22/2020, by which the learned Additional Sessions Judge, Kondagaon, District Kondagaon has convicted the appellant under Section 302 of the Indian Penal Code (for short, the IPC) and sentenced him to undergo life imprisonment with fine of Rs.10,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months for murder of his brother namely Balsingh. 2. Case of the prosecution, in short, is that on 20.06.2020 the appellant committed murder of his younger brother namely Balsingh (hereinafter referred to as ‘the deceased’) inside his own house with an axe. 3. Merg intimation (Exhibit P/14) bearing No. 36/2020 was recorded by Vinod Kumar Sahu, Police Inspector (PW-10) on the information given by mother of the deceased and the appellant, namely Fundi Bai Netam (PW-1) on 20.06.2020 at about 19:30 hours and thereafter, FIR was lodged on the same day at about 19:45 hours at Police Station, Farasgaon, District Kondagaon. 4. In the FIR (Exhibit P-1), Fundi Bai (PW-1) stated that he has two sons namely Lachhuram (appellant) and Balsingh (deceased). Balsingh was elder son who was married and her younger son was unmarried. On the date of incident i.e. 20.06.2020, the appellant was roaming on his motorcycle after having his lunch and returned back at about 3 p.m. and lied on mat on the floor. The informant had gone upto the tap for fetching water. At about 4 p.m, when she returned back, she saw that his elder son i.e. the appellant who was in a state of daze and was sweating was going outside the house carrying an axe in which there was blood alongwith his face and clothes. When she asked him as to what had happened, he stated nothing. When she went inside the house, she found his younger son lying in an injured condition with deep injuries on his face and head. The deceased was barely able to breathe. She immediately came out of the house and informed Pratima Netam (PW-2) i.e. her daughter-in-law that the appellant had killed his younger son upon which Pratima Netam also went inside and saw the entire scene and informed her uncle (Chacha) Ramaram. The deceased was barely able to breathe. She immediately came out of the house and informed Pratima Netam (PW-2) i.e. her daughter-in-law that the appellant had killed his younger son upon which Pratima Netam also went inside and saw the entire scene and informed her uncle (Chacha) Ramaram. Thereafter, Ramaram informed about the incident to some of the villagers who called the 108 Ambulance and on examining by the Doctor, the Balsingh was declared dead. She further stated in the FIR that on the previous day i.e. 19.06.2020, there was an argument and quarrel between the appellant and the deceased with regard to being idle and doing no work in the fields. On the said issue, the appellant had murdered his younger brother by giving deadly blow with the axe on his face multiple times. 5. After investigating the matter, the police submitted the police report alongwith charge-sheet against the Accused under section 302 IPC before the Judicial Magistrate First Class, Kondagaon, who in turn committed the case to the Sessions Court for trial and the case was registered as Sessions Trial No. 22/2020. 6. The learned Sessions Judge framed charge on 04.12.2020 charging the appellant/accused for the offence punishable under Section 302 of the IPC. 7. Amongst others, the prosecution has filed the following documents in support of its case: • FIR (Exhibit P/1) • Statement of Budhram Korram (Exhibit P/2) • Summons under Section 175 Cr.P.C. (Exhibit P/3) • Inquest Report (Exhibit P/4) • Property Seizure Memo (Exhibit P/5) • Memorandum (Exhibit P/6) • Property Seizure Memo (Exhibit P/7) • Arrest memo (Exhibit P/8) • Application for postmortem (Exhibit P/9) • Postmortem report (Exhibit P/10) • Memo for query of the seized axe (Exhibit P/11) • Query report (Exhibit P/12) • Property seizure memo (Exhibit P/13) • Merg intimation (Exhibit P/14) • Crime details form (Exhibit P/15) • Memo regarding providing of spot map (Exhibit P/16) • Memo for FSL report (Exhibit P/17) • Receipt of exhibits (Exhibit P/18) • FSL report (Exhibit P/19) 8. In order to bring home the offence, prosecution examined as many as 10 witnesses namely: • Fundi Bai (PW- 1): She is the mother of the deceased and the appellant. In order to bring home the offence, prosecution examined as many as 10 witnesses namely: • Fundi Bai (PW- 1): She is the mother of the deceased and the appellant. She had lodged the FIR narrating the entire incident.She states that when she returned home after fetching water from the tap, she saw the appellant coming out of the house who was carrying an axe smeared with blood. His clothes also had blood stains. When she went inside, she saw the deceased lying in a pool of blood. She further states that since the appellant was a lazy person and he was not doing any work. However, she is not aware that if, on this issue, there was a quarrel between the deceased and the appellant on the previous day. She further states that she had not seen the appellant assaulting the deceased. • Pratima Netam (PW- 2): She is the wife of the appellant. She states that when her mother-in-law (PW-1) informed her that when she had gone for fetching water and returned back to home, she saw the appellant running out of the house. Thereafter, this witness entered the house when she saw that the deceased was hardly breathing and Ambulance was called but the deceased died. This witness further stated that in the morning, the deceased had scolded the appellant that he has two children but he does not do any work and is lying in the house in a drunken condition upon which they both had some altercation. Except this, there was no other issue between them. • Budhram Korram (PW- 3): He is a child witness aged about 13 years and nephew of the deceased and the appellant. He states that he was informed by his grandmother (PW-1) that the appellant had committed murder of the deceased. He further states that he had not seen the appellant running away from the house but when he went inside the house, he saw the dead body of the deceased who had injuries on his body. • Aasman Vatti (PW- 4): He is the neighbour of the appellant. He resides just in front of the house of the deceased. He had seen the appellant holding an axe at about 8:00 p.m. and he had a Gamchha in his neck which had blood stains. • Aasman Vatti (PW- 4): He is the neighbour of the appellant. He resides just in front of the house of the deceased. He had seen the appellant holding an axe at about 8:00 p.m. and he had a Gamchha in his neck which had blood stains. He had also gone to the house of the deceased where he had seen the deceased in a dead condition with injuries over his body. He further states that he had not seen the appellant causing injuries to the deceased but had definitely seen the appellant holding an axe and running away. He also states that PW-1, mother of the deceased had informed him that the appellant had murdered the deceased. • Balsingh Markam (PW- 5): He states that PW-1, mother of the deceased informed him that the appellant had murdered the deceased with an axe. He had seen the deceased in an injured condition. Later, when the Ambulance and the Doctor came, he was declared dead. • Ramesh Markam (PW- 6): He is the witness to the inquest (Exhibit P/4). He states that the police had seized plain soil and blood stained soil in his presence and seizure memorandum (Exhibit P/5) was prepared. He is also the witness to memorandum statement of the appellant (Exhibit P/6) and also the seizure (Exhibit P/7) of axe which was recovered at the instance of the appellant. He is also witness to the arrest memo (Exhibit P/8). He deposed that when the appellant was arrested, the appellant had confessed in front of him. • Chandraprakash Netam (PW- 7): He states that on the date of incident, he came to know through mobile. He had asked Devendra who is the husband of the Sarpanch, upon which he informed that Balsingh was murdered by his brother i.e. the appellant. He is also the witness to inquest (Exhibit P/4). • Dr. Shailendra Kumar (PW- 8): He is the doctor posted at Community Health Centre, Farasgaon. He had conducted the postmortem and prepared the postmortem report (Exhibit P/10) and narrated the entire injuries and the cause of death wherein he states that the death was homicidal in nature. He had also examined the seized axe upon the query made by the police and had opined that the injuries sustained by the deceased could have been caused by the said axe. He had also examined the seized axe upon the query made by the police and had opined that the injuries sustained by the deceased could have been caused by the said axe. For definite opinion as to whether the blood stains on the axe were human blood or not, he had advised for sending it to the Forensic Science Laboratory. • Krishna Kumar Sahu (PW-9): He is the Police Constable who had signed the seizure memo (Exhibit P/13) prepared by Vinod Kumar Sahu, Police Inspector, when clothes of the appellant were seized which had blood stains on it. • Vinod Kumar Sahu (PW-10): He is the Police Inspector who had investigated the case. He states that he had recorded the merg intimation (Exhibit P/14) and had also registered the FIR (Exhibit P/1). On the next day of the incident, he had gone to the place of incident and prepared the inquest and had also sent the body for postmortem to Community Health Centre, Farasgaon. He had also prepared the spot map and had seized the plain soil and blood stained soil from the spot. The IO had further recorded the statements of the witnesses namely Fundibai, Pratima Netam on 20.06.2020, Budhram Korram, Aasman Vatti, Balsingh Markam, Devendra Netam, Ramesh Kumar Markam, Ved Prakash Markam on 06.09.2020 and Ramaram Netam and Bharat Nishad on 12.09.2020. On 21.06.2020, the axe which was hidden by the appellant was recovered at the instance of the appellant (Exhibit P/6) and seized (Exhibit P/7). On the said date itself, the appellant was arrested and arrest memo (Exhibit P/8) was prepared. After the postmortem, his clothes were given in a sealed condition to the Head Constable, Umesh Baghmare which was seized. On 19.07.2020, a query was made by him to the Doctor (Exhibit P/11) to ascertain as to whether the blood found on the axe was human blood or not and whether the injuries sustained by the deceased could have been caused by the said axe. Further, the seized articles were sent to the FSL, Jagdalpur thorugh the office of Superintendent of Police. 9. In support of his case, the appellant has exhibited the police statement under Section 161 of the Cr.P.C. of the Smt. Pratima Netam (PW-2) (Exhibit D/1), Aasman Vatti (PW-4) (Exhibit D/2) and Bal Singh Markam (PW-5) (Exhibit D/3). 10. The statement of the Accused under section 313 CrPC was recorded on 16.09.2021. 9. In support of his case, the appellant has exhibited the police statement under Section 161 of the Cr.P.C. of the Smt. Pratima Netam (PW-2) (Exhibit D/1), Aasman Vatti (PW-4) (Exhibit D/2) and Bal Singh Markam (PW-5) (Exhibit D/3). 10. The statement of the Accused under section 313 CrPC was recorded on 16.09.2021. He stated that he was innocent and has been falsely implicated in this case. 11. The learned Sessions Judge, after considering the evidence on record, convicted the appellant/accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict. 12. Mr. Sourabh Dangi, learned counsel for the appellant would submit that the prosecution has failed to bring home the offence beyond reasonable doubt and there is no eye witness to the incident. The case is based on circumstantial evidence and the chain of circumstances has not been proved in this case beyond reasonable doubt. The learned trial Court ought to have considered that the witnesses are interested witnesses and there was no motive for the appellant to commit murder of his own brother. 13. On the other hand, Mr. Gurudev I. Sharan, learned Government Advocate appearing for the State/respondent submits that it is a case of house murder, therefore, provisions of Section 106 of the Evidence Act is applicable and the appellant was required to explain as to under what circumstances Balsingh died in his house. He further submits that appellant has failed to explain the death of deceased inside the house and therefore, the conviction of the appellant for offence under Section 302 of I.P.C. is well merited and the appeal deserves to be dismissed. 14. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 15. The first question for consideration is whether the death of deceased Balsingh was homicidal in nature? 16. Considering the medical evidence of Dr. Shailendra Kumar (PW-8) who has proved the post-mortem report (Exhibit P-10) and further considering the nature of injury, which the deceased was found to have suffered, is sufficient to hold that the death of the deceased was homicidal in nature. In the postmortem report (Exhibit P/10), the following injuries were found: 1. “Incised wound – Right frontal head 6 cm X 1 ½ cm upto brain cavity 2. In the postmortem report (Exhibit P/10), the following injuries were found: 1. “Incised wound – Right frontal head 6 cm X 1 ½ cm upto brain cavity 2. Incised wound – Left frontal skull of head and eyebrow 5 cm X 1 ½ cm upto brain cavity of skull of head 3. Lacerated wound – Left side chin 3 cm x 2 cm x ½ cm 4. Lacerated wound 3 cm x 2 cm right eyebrow 5. Incised wound 4 cm x 1/3 cm X full dept right side frontal head depressed” Lastly, it has been opined by the Doctor (PW-8) that the cause of death was head injury and excessive blood loss from traumatic injury side and the manner being homicidal ante-mortem in nature. Time elapsed since death was about 17 to 20 hours. Further in the query report (Exhibit P/12) with respect to the seized axe also, the Doctor has opined that injuries sustained by the deceased could have been caused by the said axe. 17. Thus, we are of the considered opinion that the death of the deceased was homicidal in nature. It is held accordingly. 18. Now, the next question is, whether the appellant is the author of the crime, which the trial Court has answered in affirmative relying upon the circumstantial evidence available on record. The trial Court has convicted the appellant with the aid of Section 106 of the Evidence Act holding that it is house murder, which the appellant was required to offer explanation in the statement under Section 313 of Cr.P.C., which he has failed to offer and consequently, finding other circumstance established proceeded to convict him for offence under Section 302 of I.P.C. 19. 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.” 20. 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. 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. 21. 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. 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. 22. 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.” 23. When the chain is not complete, falsity of the defence is no ground to convict the accused.” 23. 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 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. 24. 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. 25. In the matter of Harijan Bhala Teja v. State of Gujarat, AIR 2016 SC 2065 , the Supreme Court has held that where the postmortem report establishes homicidal nature of death and since the accused only was staying with his wife at time of her death, it is for the accused to show has to in what manner she died and relying upon Section 106 of the Indian Evidence Act in paragraph 19 of the report it was held as under: - “19. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since it is proved on the record that it was only the appellant who was staying with his wife at the time of her death, it is for him to show as to in what manner she died, particularly, when the prosecution has successfully proved that she died homicidal death.” 26. Likewise, in the matter of Gajanan Dashrath Kharate v. State of Maharashtra, AIR 2016 SC 1255 , where the accused (Gajanan Dashrath Kharate) alleged to have killed his father and accused has not offered any explanation for homicidal death of his father, conviction was affirmed by the Supreme Court by holding as under in paragraph 14: - “14. Upon appreciation of oral evidence and the circumstance of the recovery of blood stained clothes of the accused and the conduct of the accused in not offering any explanation for the homicidal death of his father, by concurrent findings, the trial court and the High Court rightly convicted the appellant-accused under Section 302 IPC and we do not find any reason to interfere with the impugned judgment.” 27. Reverting to the facts of this case, in our opinion, it is already held that the prosecution has proved the death to be homicidal in nature and furthermore, it is evident on record that on the date of incident, in the house in question, the appellant who is the elder brother of the deceased, used to reside with his wife and mother. On the date of incident and on the previous date, there was an argument between the appellant and the deceased on the ground that the appellant, even though being married and having two children, was an unemployed person who used to do no work and used to remain at home in a drunken condition. This statement has been made by both the mother and wife of the appellant. Even being an elder brother, he was being scolded by his younger brother which had enraged the appellant and given a motive to kill the deceased. This statement has been made by both the mother and wife of the appellant. Even being an elder brother, he was being scolded by his younger brother which had enraged the appellant and given a motive to kill the deceased. The mother of the appellant herself has stated that when she returned back home after fetching water from the tap, she saw the appellant in a dazed condition carrying an axe and moving out of the house with blood on the axe and his clothes. As soon as she entered the house, she saw the deceased lying in a pool of blood with multiple injuries over face and head. When the mother asked the appellant as to what had happened, he expressed nothing and simply moved out of the house. The conduct of the appellant himself is indicative of the fact that it was the appellant alone who had caused the murder of his younger brother. Further, in the FSL report, in item ‘A’ i.e. the soil collected from the spot, item ‘C’, which was the axe, item ‘D’, which was the Tshirt of the appellant, items ‘E’ and ‘F’, clothes of the deceased, blood has been found. On items ‘E’ and ‘F’, human blood was found. With regard to the group of blood found on items ‘A’, ‘C’ and ‘D’, could not be ascertained as they were disintegrated. The result of examination of item ‘F’ remained inconclusive. 28. The place of incident is the house of the appellant and the deceased itself who are brothers. The deceased was found in a severely injured condition in his house and at that time, there was no body inside the house except both the brothers as the wife of the appellant was outside the house looking after her two children, her mother had gone to fetch water from the tap outside the house. When the deceased who was the real brother of the appellant, had sustained so grievous injuries, the appellant has admittedly not explained in the statement under Section 313 of Cr.P.C as to how the deceased received such injuries. In our opinion, the above chain of circumstances is complete and leads only to one conclusion that it was the accused/appellant who caused the death of the deceased and he alone committed the murder of the deceased. In our opinion, the above chain of circumstances is complete and leads only to one conclusion that it was the accused/appellant who caused the death of the deceased and he alone committed the murder of the deceased. The view taken by the learned trial Court that the appellant is the author of the crime is a pure finding of fact based on evidence available on record and we are of the opinion that in the present case, the only view possible was the one taken by the trial Court. 29. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellant/convict. 30. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed. 31. The appellant/convict is stated to be in jail. He shall serve out the sentence awarded by the trial Court by means of the impugned judgment and order dated 10.12.2021. 32. Let a certified copy of this order alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any.