JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 15.02.2016, passed by the Sessions Judge, Raipur, in Sessions Trial No.248/ 2013, by which, the appellant herein has been convicted for the offence under Section 302 of Indian Penal Code and sentenced to undergo imprisonment for life. 2. Case of the prosecution, in brief, as projected and accepted by the trial Court, is that, in the intervening night of 10.07.2013 to 11.07.2013 at 4:30 A.M., at Deemarpara, Kota, Police Station- Saraswati Nagar, Raipur, the appellant herein strangulated his wife Tara Devi (now deceased) to death with the help of acquitted co-accused Suresh Nirmalkar and in order to screen himself from the legal punishment hide the neck towel, which was used for strangulation and thereby the offence has been committed. The incident was reported to Police Station by Prakash Kumar Kurre (PW-1), pursuant to which, merg intimation was recorded vide Ex.P-1, panchnama was prepared vide Ex.P-5, nazari naksha was prepared vide Ex.P-6, FIR was registered vide Ex.P-13, inquest was conducted vide Ex.P-3 and dead body of deceased Tara Devi was subjected to postmortem, which was conducted by Dr. S.K.Bagh (PW-9), who proved the post-mortem report Ex.P-14, in which cause of death was stated to be asphyxia as a result of manual strangulation and death was homicidal in nature. Pursuant to memorandum statement of the appellant, neck towel was seized vide Ex.P-8 and broken bangles were seized vide Ex.P-7 along-with other articles. Thereafter, statements of witnesses were recorded and after due investigation, the appellant was charge-sheeted for the offence under Section 302 of I.P.C. before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 12 witnesses and exhibited 19 documents and the appellant-accused in support of his defence has examined one witness DW-1 and has exhibited the documents Ex.D-1 to Ex.D-3. 4. 3. In order to bring home the offence, prosecution examined as many as 12 witnesses and exhibited 19 documents and the appellant-accused in support of his defence has examined one witness DW-1 and has exhibited the documents Ex.D-1 to Ex.D-3. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the aforesaid offence and sentenced him as mentioned in the opening paragraph of the judgment against which the present appeal has been preferred. 5. Dr. Shiv Kumar Shrivastava, learned counsel for the appellant, would submit that the circumstantial evidence, which has been made the basis for conviction of the appellant is not made out. He further submits that in the evidence, the fact that has come on record is that the appellant was engaged in the night duty, and therefore, it cannot be presumed that the appellant was in his house at the time of death of his wife. His next submission is that the defence witness has also stated that he met the appellant in the night at the place of duty at about 01:00–01:30 A.M., which rules out the possibility of the appellant being in his house. His further submission is that the evidence of all other prosecution witnesses is not reliable as there are contradictions and omissions with regard to the conduct of the appellant after the incident and the sister and brother-in-law of the deceased, namely, Hariram Dewangan (P.W.6) and Smt. Sumitra Dewangan (P.W.7) have stated that the appellant had informed them regarding death of Tara Devi on account of abdominal pain. He further submits that the prosecution has failed to bring home the offence against the appellant beyond reasonable doubt and the learned trial Court is absolutely unjustified in convicting the appellant by recording a finding, which is perverse to the record and, as such, the appellant is entitled for acquittal and the appeal deserves to be allowed. 6. On the other hand, learned State counsel submits that wife of the appellant was found killed in his house and the medical evidence proves homicidal death. His next submission is that the prosecution evidence proves that the appellant had given false explanation. The evidence on record suggests that the deceased wife died because of strangulation and not of abdominal pain. On the other hand, learned State counsel submits that wife of the appellant was found killed in his house and the medical evidence proves homicidal death. His next submission is that the prosecution evidence proves that the appellant had given false explanation. The evidence on record suggests that the deceased wife died because of strangulation and not of abdominal pain. The conduct of the appellant in not making any report and attempting to dispose off the body by cremating also points out that he is the author of the crime and therefore, the trial Court is absolutely justified in convicting the appellant for the offence under Section 302 of I.P.C. and, as such, the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first question for consideration as to whether the death of the deceased Tara Devi was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-14 proved by Dr. S.K.Bagh (PW-9), according to which, death was caused due to asphyxia as a result of strangulation and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. Now, the next question is, whether the appellant is the author of the crime, for which the trial Court has held that the death of the deceased was homicidal in nature and further held that since the appellant and deceased both were living together on the date and time of offence in the house of appellant and it is the case of house murder, but the appellant has not explained in the statement under Section 313 of Cr.P.C. as to how his wife had died, which was in his special knowledge by virtue of Section 106 of the Indian Evidence Act and therefore, the appellant is guilty of murder of his wife. 10. Now, the question is, whether the trial Court has rightly invoke Section 106 of the Evidence Act to base the conviction of the appellant for the offence under Section 302 of I.P.C. ? 11. Section 106 of the Indian Evidence Act, 1872, states as under: - “106. 10. Now, the question is, whether the trial Court has rightly invoke Section 106 of the Evidence Act to base the conviction of the appellant for the offence under Section 302 of I.P.C. ? 11. 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.” 12. 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. 13. 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. 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. 14. 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.” 15. When the chain is not complete, falsity of the defence is no ground to convict the accused.” 15. 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. 16. 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. 17. 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 ? 18. The death of deceased has been held to be homicidal in nature, which we have already affirmed in the earlier part of this judgment. Now, the question would be whether the prosecution has discharged its primary duty of proving the guilt for which the trial Court has held that in order to establish that, on the date of offence, in the house of the appellant apart from appellant and deceased, there is no evidence on record that other person was available and since the appellant and deceased both were staying together, therefore, Section 106 of the Evidence Act would be applicable. The trial Court did not record a clear cut finding that the appellant and deceased were living together on the date of offence, as the dead body of deceased was found inside the house but the appellant has not offered any explanation. 19. The statement of Prakash Kumar Kurre (PW-1) would show that the appellant was present on the date and time of offence and as per his statement, he reached to the house on being informed by Smt. Vijaya Banjare (PW-8) and at that time, the appellant was also present. However, the appellant’s co-brother Hariram Dewangan (PW-6), in his statement, has stated that in the intervening night of 10.07.2013 to 11.07.2013, appellant Taneshwar informed him in the mobile that his wife has suffered stomach pain and then he reached to the house, the door was opened by Tara Devi and then she fell down immediately thereafter. As such, from the statement of appellant and prosecution witnesses, it is not clearly established that appellant and deceased were living together on the date of offence. However, the trial Court did not take any pain to record specific finding before convicting the appellant under Section 302 of IPC as to whether the appellant was also present in the house on the date and time of offence. On the other hand, the trial Court held and proceeded to convict the appellant that since no evidence has been brought on record that some other person was present in the house of appellant on the date of offence to invoke Section 106 of the Evidence Act. 20. In our considered opinion, the prosecution has not discharged its burden to prove the offence beyond reasonable doubt and furthermore, by virtue of Section 313(1)(a) of Cr.P.C. in every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary. As such, it was absolutely necessary for the trial Court to put to the appellant all incriminating circumstances, as in the instant case, the sole incriminating circumstance that was found by the trial Court for invoking Section 106 of the Evidence Act is that the appellant and deceased were the only two inmates in the house on the date of offence and as to how Tara Devi died, which was in special knowledge of the appellant by virtue of Section 106 of the Evidence Act. Therefore, the trial Court was obliged to put specific question qua this incriminating circumstance that the appellant and his wife both were living together in the house on the date of offence and dead body was found inside the house and the trial Court should have asked the appellant’s explanation with regard to that incriminating piece of evidence, which the trial Court has miserably failed to seek explanation. The specific case of the appellant is that he was on duty on the date of offence and he has also examined Jaideep Chandrawarty (DW-1) that he was on duty as Guard at R.D.A.Colony and he was not present in the house on the date of offence. 21. In that view of the matter, we are of the considered opinion that though the prosecution has been able to prove the death to be homicidal in nature, but the prosecution has failed to discharge its primary burden of proving the case beyond reasonable doubt, as the fact of appellant present in the house on the date of offence has not been proved beyond reasonable doubt. Furthermore, the incriminating circumstance of living together of appellant and his wife (deceased) on the date of offence and dead body being found inside the house of appellant has not been specifically put to the accused under Section 313 Cr.P.C., which was absolutely necessary for invoking Section 106 of the Evidence Act. 22. The Supreme Court in the matter of Asraf Ali v. State of Assam, (2008) 16 SCC 328 has held that in Section 313 of Cr.P.C. every circumstance appearing against accused must be put to him specifically and separately and failure to do so would vitiate the trial if accused is shown to be prejudiced thereby or it resulted in miscarriage of justice. Their Lordships relied upon its earlier decision in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 and held in paragraphs 20, 21, 22 & 26 as under :- 20. In Sharad Birdhichand Sarda v. State of Maharashtra, it was, inter-alia, noted as follows: "143- Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code, 1973 they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat, AIR 1953 SC 468 this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 of the old Code (corresponding to Section 313 of the Criminal Procedure Code, 1973), the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra, (1976) 1 SCC 438 this Court held thus: (SCC p. 440, para 5) ‘5….The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him." 21. Section 313 of the Code casts a duty on the Court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced. 22. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced. 22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed a similar view in S. Harnam Singh v. State (Delhi Admn.), AIR 1976 SC 2140 , while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non- indication of inculpatory material in its relevant facts by the trial court to the accused adds to vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise. 26. As rightly contended by learned counsel for the appellant no witness has stated that on the date of occurrence the accused had caused severe injury to the deceased by assaulting him on the head from behind. The circumstances which were relied upon by the trial Court to find the accused guilty were not specifically brought to the notice of the accused. Therefore, in essence, his examination under Section 313 of the Code was rendered an empty formality. On that count alone, the impugned judgment of the High Court cannot be sustained and is set aside. The conviction recorded stands set aside. The bail bond of the appellant who is on bail shall stand discharged. 23. In view of the aforesaid principles of law laid down by the Supreme Court and in view of the discussion made herein above, we are of the considered opinion that the appellant is entitled for acquittal on the ground of benefit of doubt. Accordingly, the impugned judgment dated 15.02.2016 is hereby set aside. 23. In view of the aforesaid principles of law laid down by the Supreme Court and in view of the discussion made herein above, we are of the considered opinion that the appellant is entitled for acquittal on the ground of benefit of doubt. Accordingly, the impugned judgment dated 15.02.2016 is hereby set aside. The appellant stands acquitted of the charge framed against him for the offence punishable under Section 302 of I.P.C. and he shall be forthwith set at liberty, unless he is required in connection with any other case. 24. The appeal is allowed. 25. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.