JUDGMENT : SANJAY K. AGRAWAL, J. 1. This criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the appellant against impugned judgment dated 18/01/2016 passed by learned Sessions Judge, Baloda Bazar in Sessions Trial No. 38/2015 whereby he has been convicted for offence punishable under Section 302 of IPC and has been sentenced to undergo imprisonment for life with fine of Rs. 100/- and in default of payment of fine, additional S.I. for 6 months. 2. Case of the prosecution, in a nutshell, is that in the intervening night of 18-19/05/2015 at village Bharuadih, appellant herein assaulted his wife Budhwantin by crushing her head with grinding stone due to which she suffered grievous injuries and died and he, thereby, committed the aforesaid offence. 3. Further case of the prosecution is that on 19/05/2015 at about 5:55 AM at Village Bharuadih, Fattelal Manhare (PW-2) lodged a report at Police Station Palaari that wedding ceremony of his younger daughter was organized in his house and guests had come to his house and after having dinner, everyone had gone to sleep. At about midnight, his granddaughter Hemlata (PW-5) woke him up and informed him that in the barn, his daughter-in-law Budhwantin was lying dead and blood was oozing out of her head. At night, his son (appellant herein) and daughter-in-law Budhwantin were sleeping in the barn and his son suspected the character of his wife and on that account, they quarrelled at night and the appellant assaulted Budhwantin with grinding stone on her head and caused her death. On the basis of the said information, merg intimation was registered vide Ex. P/4, inquest was conducted vide Ex. P/2 and the dead body of deceased Budhwantin was subjected to postmortem which was conducted by Dr. Yogendra Verma (PW-7) and as per the postmortem report (Ex. P/13), cause of death is said to be due to concussion injury and hypovolemic shock due to head injury with acute blood loss and nature of death is said to be homicidal. First information report was registered against the appellatn vide Ex. P/5 and after recording his memorandum statement vide Ex. P/9, appellant's blood stained lungi was seized vide Ex. P/10. From the spot, grinding stone was seized vide Ex. P/3. The said seized articles were sent for forensic examination and as per the FSL report (Ex. First information report was registered against the appellatn vide Ex. P/5 and after recording his memorandum statement vide Ex. P/9, appellant's blood stained lungi was seized vide Ex. P/10. From the spot, grinding stone was seized vide Ex. P/3. The said seized articles were sent for forensic examination and as per the FSL report (Ex. C/1), blood was found on the lungi seized from the appellant and human blood was found on the grinding stone. After due investigation, the appellant was charge-sheeted for offence punishable under Section 302 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellant abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution examined as many as 9 witnesses and brought on record 21 documents. Statement of the appellant was recorded under Section 313 of Cr.P.C. wherein he denied guilt, however, he examined none in his defence and neither brought any documents on record. 5. Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased Budhwantin to be homicidal in nature and further finding the appellant to be the author of crime in question, proceeded to convict him for offence punishable under Section 302 of IPC. 6. Mr. Sudheer Kumar Bajpai, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for offence punishable under Section 302 of IPC applying the provision contained under Section 106 of the Evidence Act as it is the case of the prosecution that as per the first information report (Ex. P/5), the incident has been witnessed by Meena Mandel (PW-4), Kumari Hemlata (PW-5) and one Ram Prasad Tandan, who has not been examined before the Court and as such, Section 106 of the Evidence Act would not apply in view of the decision rendered by the Supreme Court in the matter of Murlidhar vs. State of Rajasthan, AIR 2005 SC 2345 . Furthermore, the fact that appellant and deceased were sleeping together on the night of the offence and no other person was present therein has not been established by the prosecution beyond reasonable doubt, as such, the appellant is liable to be acquitted. 7. Per contra, Mr. Furthermore, the fact that appellant and deceased were sleeping together on the night of the offence and no other person was present therein has not been established by the prosecution beyond reasonable doubt, as such, the appellant is liable to be acquitted. 7. Per contra, Mr. Afroz Khan, learned State counsel, would submit that since appellant and deceased were the only ones in the barn at the time of the incident, appellant ought to have offered an explanation in his statement under Section 313 of Cr.P.C. as to how and under what circumstances his wife died, which he has failed to do and as such, the provision contained under Section 106 of the Evidence Act would squarely attract and moreover, from the grinding stone seized from the spot vide Ex. P/3, human blood has been found on it in the FSL report (Ex. C/1) and from the lungi of the appellant seized vide Ex. P/10, blood has been found on it and in view of the decision rendered by the Supreme Court in the matter of Balwan Singh vs. State of Chhattisgarh, (2019) 7 SCC 781 recovery is of great use to the prosecution and as such, the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC and the instant appeal is liable to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. The first question for consideration would be whether the death of deceased Budhwantin was homicidal in nature? 10. Learned trial Court has recorded an affirmative finding in this regard and held the death of deceased Budhwantin to be homicidal in nature relying upon the postmortem report (Ex. P/13) proved by Dr. Yogendra Verma (PW-7) in which cause of death is said to be on account of concussion injury and hypovolemic shock with acute blood loss and nature of death is said to be homicidal. Considering the statement of Dr. Yogendra Verma (PW-7) and further considering the postmortem report (Ex. P/13) and the injury suffered by the deceased on her head, we are of the considered opinion that the trial Court has rightly held the death of deceased Budhwantin to be homicidal in nature particularly when it has not been seriously questioned by learned counsel for the appellant. 11. Yogendra Verma (PW-7) and further considering the postmortem report (Ex. P/13) and the injury suffered by the deceased on her head, we are of the considered opinion that the trial Court has rightly held the death of deceased Budhwantin to be homicidal in nature particularly when it has not been seriously questioned by learned counsel for the appellant. 11. The next question for consideration would be whether the appellant is the author of crime in question? 12. Learned trial Court has recorded an affirmative finding in this regard as well and held the appellant to be the author of crime in question relying upon the statements of Fattelal Manhare (PW-2) who is the father of appellant, Meena Mandel (PW-4) who is appellant's maternal niece and Kumari Hemlata (PW-5) who is appellant's daughter. However, Meena Mandel (PW-4) and Kumari Hemlata (PW-5), who have been cited as eye-witnesses, have not supported the case of the prosecution and have not stated before the Court that they have seen the incident wherein appellant assaulted the deceased and caused injury on her head on account of which deceased Budhwantin died and surprisingly, other eye-witnesses namely Shiv Prasad, son of Fattelal Manhare (PW-2) and one Ram Prasad have not been examined before the Court for the reasons best known to the prosecution. 13. Fattelal Manhare (PW-2), father of the appellant, has only stated in his statement before the Court that his granddaughter Kumari Hemlata (PW-5) informed her at midnight his father was standing and then he went to the place of occurrence and saw that his daughter-in-law Budhwantin was lying dead in the barn and she had sustained injuries on her head and lying therein was a grinding stone which was seized by the Police. He has also admitted the fact that on the date of offence, wedding ceremony of his younger daughter was going on in his house and guests were coming and appellant and his wife Budhwantin had gone to sleep in the barn. 14. Similarly, Meena Mandel (PW-4) who is the niece of the appellant, has only stated that on the night of the incident, she was sleeping with Kumari Hemlata (PW-5) daughter of appellant and deceased and both the appellant as well as the deceased were sleeping in the barn. She has also admitted that on the date of incident, Shiv Prasad and other persons were also present. She has also admitted that on the date of incident, Shiv Prasad and other persons were also present. Likewise, statement has been made by Kumari Hemlata (PW-5), who has clearly stated that on the date of the incident, guests had starting arriving and on the night of the offence, she was sleeping with Meena Mandel (PW-4) and her parents i.e. appellant and deceased were sleeping in the barn. She has also admitted that at the time of the incident, her brother, her grandfather and other people were also present in the house. As such, they have not supported the case of the prosecution and have not stated that they have seen the appellant causing injury to the deceased. However, the trial Court has applied Section 106 of the Evidence Act and recorded a finding in paragraph 20 of the impugned judgment and held that appellant was required to explain in his statement under Section 313 of Cr.P.C. as to how and under what circumstances his wife Budhwantin died when the appellant and deceased were the only ones sleeping in the barn. 15. At this stage, it would be appropriate to notice the provision contained under Section 106 of the Evidence Act, which provides 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 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 Murlidhar and Others vs. State of Rajasthan, AIR 2005 SC 2345 their Lordships of the Supreme Court have held that since the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and therefore, the principle in Section 106 of the Evidence Act could not apply and observed as under: “22. In our judgment, the High Court was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. As pointed out in Mir Mohammad Omar (supra) and Shambu Nath Mehra (supra), the rule in Section 106 of the Evidence Act would apply when the facts are “especially within the knowledge of the accused” and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, “especially within the knowledge of the accused.” In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the principle in Section 106 could not apply. On the other hand, the prosecution proceeded on the footing that there were eye-witnesses to the fact of murder. The prosecution took upon itself the burden of examining Babulal (PW-5) as eye-witness. Testimony of Ram Ratan (PW-7) and Isro (PW-10) shows that their agricultural land was situated in a close distance from the house of Khema Ram. As rightly pointed out by the High Court, it is highly unlikely and improbable that their kith and kin Ramlal would have been given beating resulting in his death by the accused-appellants while keeping lights of their house on and door of the room opened. It is also unlikely that the accused-appellants would have taken the risk of dragging Ramlal to the house of Khema Ram, which was situated in the vicinity of agricultural land and well of Isro (PW-10), the father of Ramlal. 23. It is also unlikely that the accused-appellants would have taken the risk of dragging Ramlal to the house of Khema Ram, which was situated in the vicinity of agricultural land and well of Isro (PW-10), the father of Ramlal. 23. In the result, we are of the view that the prosecution having put forward a case that, what transpired after Ramlal was dragged away by the assailants was within the knowledge of witnesses, utterly failed in proving the said facts. Once this is established, it was not open for the High Court to have fallen back on the rule of burden of proof under Section 106 of the Evidence Act. In fact, as we notice, it was nowhere the case of the prosecution that Section 106 of the Evidence Act applied to the facts on record. The High Court seems to have brought it out on its own, but without any justification. We are, therefore, of the view that the conviction of Murlidhar, Chhaju Ram and Babu Lal S/o Chhaju Ram under Section 364, IPC is justified and liable to be confirmed, but their conviction under Section 302/34, IPC cannot be sustained and they are liable to be acquitted of the said charges.” 18. Recently, in the matter of Balvir Singh vs. State of Uttarakhand, 2023 SCC Online SC 1261 their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the Evidence Act, have held that Section 106 of the Evidence Act has to be applied in criminal cases with care and caution and held in paragraphs 41 to 48 as under: “41. Thus, from the aforesaid decisions of this Court, it is evident that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106 of the Evidence Act. 42. Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. 42. Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden of the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused. 43. Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory. If in such a situation, the accused gives an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams: “All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence.” 44. In the language of Prof. Glanville Williams: “All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence.” 44. To recapitulate the foregoing : What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e. of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is therefore for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions. If the accused had a different intention that is a fact especially within his knowledge and which he must prove (see Professor Glanville Williams-Proof of Guilt, Ch. 7, Page 127 and following) and the interesting discussion-Para 527 negative averments and Para 528 “require affirmative counter-evidence” at Page 438 and foil, of Kenny's outlines of Criminal Law, 17th Edn. 1958. 45. But Section 106 has no application to cases where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happened to be present when it took place. 1958. 45. But Section 106 has no application to cases where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happened to be present when it took place. From the illustrations appended to the section, it is clear that an intention not apparent from the character and circumstances of the act must be established as especially within the knowledge of the person whose act is in question and the fact that a person found travelling without a ticket was possessed of a ticket at a stage prior in point of time to his being found without one, must be especially within the knowledge of the traveler himself: See Section 106 of the Indian Evidence Act, illustrations (a) and (b). 46. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence which if believed by the court would convince them of the accused's guilt beyond a reasonable doubt, the accused is in a position where he should go forward with counter-vailing evidence if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might have been rebutted. Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution (Wharton's Criminal Evidence, 12th Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution (Wharton's Criminal Evidence, 12th Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Leland vs. State, 343 U.S. 790 : 96 L.Ed. 1302, Raffel vs. U.S. 271 U.S. 294 : 70 L.Ed. 1054. WHAT IS “PRIMA FACIE CASE” IN THE CONTEXT OF SECTION 106 OF THE EVIDENCE ACT? 47. The Latin expression prima facie means “at first sight” or “at first view” or “based on first impression.” According, to Webster’s Third International Dictionary (1961 Edn.) “prima facie case” means a case established by “prima facie evidence” which in turn means “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted.” In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the charges against the defendant. If they cannot present prima facie evidence, or if an opposing party introduces contradictory evidence, the initial claim may be dismissed without any need for a response by other parties. 48. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding death.” 19. Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, what requires consideration is whether the prosecution has been able to discharge its primary burden of proving its case beyond reasonable doubt. Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, what requires consideration is whether the prosecution has been able to discharge its primary burden of proving its case beyond reasonable doubt. In the instant case, prosecution has only been able to establish that death of deceased Budhwantin was homicidal in nature and apart from that, nothing has been proved except that the dead body was found in the house of appellant where he was sleeping alongwith deceased in the barn, however, it has also been established that apart from the appellant and deceased, Fattelal Manhare (PW-2), Meena Mandel (PW-4) and Kumari Hemlata (PW-5) were also present in the house at the time of the incident and Shiv Prasad and Ram Prasad, sons of Fattelal Manhare (PW-2) were also present in the house but they have not been examined before the Court for the reasons best known to the prosecution. Therefore, in light of the decision rendered by the Supreme Court in the matters of Balvir Singh (supra) and Murlidhar (supra), provision contained under Section 106 of the Evidence Act would not apply since prosecution has not been able to discharge its primary burden of proving its case beyond reasonable doubt. In that view of the matter, we are unable to maintain the conviction of the appellant for offence punishable under Section 302 of IPC and we hereby acquit the appellant on the basis of principle of benefit of doubt. Since the appellant is in jail, he be released forthwith, if his detention is not required in any other case. 20. Accordingly, this criminal appeal stands allowed. 21. Let a certified copy of this judgment be sent to the concerned trial Court along with the original records as well as to the jail authorities for information and compliance.