JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant, under Section 374(2) of CrPC, is directed against the judgment of conviction and order of sentence dated 10.6.2016 passed by Additional Sessions Judge, Ramanujganj, District Balrampur-Ramanujganj in Sessions Case No.44/2012, by which the appellant herein has been convicted for the offence punishable under Section 302 of IPC and sentenced to undergo Imprisonment for Life and fine of Rs.1000/- and in default of payment of fine amount, to undergo additional R.I. for 50 days. 2. Case of the prosecution, in short, is that on 12.12.2011 at about 4:00 a.m. in Village Singchoura under Police Station Rajpur, the appellant killed his wife Urmila with tangi (axe) thereby committed the offence of murder punishable under Section 302 of IPC. According to the prosecution, the said act is said to have been committed by the appellant as the deceased was suspecting of his having an illicit relationship with a woman. 3. Further case of the prosecution is that on 12.12.2011 Surendra Vishwakarma (PW-1) lodged FIR (Exhibit P-2) at Police Station Rajpur alleging that on 10.12.2011 her elder sister (deceased Urmila) and her husband (appellant Shivsharan) came to his Village Karra where her sister told him of the appellant having an illicit relationship with a woman and on being asked by him, the appellant refuted the said allegation and then the complainant (PW-1) counseled them and sent back to their village. Subsequently, on the date of incident, i.e., on 12.12.2011, at about 5:00 a.m., Upendra Vishwkarma, his cousin brother, informed him that the appellant has assaulted the deceased Urmila and she is in serious condition and asked him to come quickly. He then immediately rushed to the hospital where the deceased Urmila was admitted and he found grievous injuries on her head and she was already died. 4. On the basis of the said report, Merg was registered vide Exhibit P-1. Spot Map was prepared vide Exhibit P-8. Inquest proceeding was conducted vide Exhibit P-4 and dead-body of deceased Urmila was subjected to post-mortem which was conducted by Dr. Ramprasad Tirkey (PW-8) who proved the post-mortem report (Exhibit P-15) in which the cause of death was opined to be due to Coma and Syncope, which was homicidal in nature. Spot Map was prepared vide Exhibit P-8. Inquest proceeding was conducted vide Exhibit P-4 and dead-body of deceased Urmila was subjected to post-mortem which was conducted by Dr. Ramprasad Tirkey (PW-8) who proved the post-mortem report (Exhibit P-15) in which the cause of death was opined to be due to Coma and Syncope, which was homicidal in nature. Pursuant to the memorandum statement (Exhibit P-11) of the appellant, a bloodstained iron axe was recovered vide Exhibit P-12 and sent for examination to the Medical Officer, CHC Rajpur who vide Exhibit P-16 opined for the chemical examination of the said bloodstained axe, however, no FSL report has been brought on record for the reasons best known to the prosecution. Statements of the witnesses were recorded under Section 161 of CrPC and the appellant was apprehended vide Exhibit P-18. 5. After completion of the investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC before the concerned jurisdictional Criminal Court from where the case was committed to the Sessions Court, Surguja (Ambikapur) and after committal, the matter was received by the Court of Additional Sessions Judge, Ramanujganj for trial and its disposal in accordance with law, in which the appellant abjured his guilt, took a plea of false implication and entreated for trial. 6. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 9 witnesses and exhibited 21 documents. In defence, neither any witness has been examined nor any document has been exhibited. Statement of the accused/appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 7. After conclusion of the trial, the Trial Court, by impugned judgment dated 10.6.2016, on appreciation of the oral and documentary evidence available on record, convicted the appellant herein for the offence punishable under Section 302 of IPC and sentenced him to undergo Rigorous Imprisonment for Life and fine of Rs.1000/- with default stipulation, against which the present appeal has been filed by the appellant calling in question the legality, validity and correctness of the impugned judgment. 8. Ms. Sharmila Singhai, learned senior counsel appearing for the appellant as amicus curiae along with Mr. 8. Ms. Sharmila Singhai, learned senior counsel appearing for the appellant as amicus curiae along with Mr. Amit Singh, learned panel lawyer appointed by the Chhattisgarh High Court Legal Services Committee, would submit that it is a case of the prosecution proceeded on the basis that the incident was witnessed by Upendra Vishwakarma who had informed the first informant Surendra Vishwakarma (PW-1) and the incident was not within the special knowledge of the appellant but it was also within the knowledge of the alleged eye-witness Upendra Vishwakarma who has not been examined before the Court and therefore Section 106 of the Indian Evidence Act, 1872 (for short, 'the Evidence Act') would not apply in the instant case in view of the decision of the Supreme Court rendered in the case of Murlidhar v. State of Rajasthan, AIR 2005 SC 2345 . As such, the Trial Court is absolutely unjustified in convicting the appellant for the offence punishable under Section 302 of IPC applying the provisions of Section 106 of the Evidence Act and the impugned judgment deserves to be set-aside accordingly. She would further submit that no specific question has been asked to the appellant as to how and under what circumstances his wife died in his house and therefore serious prejudice has been caused. In that view of the matter, the appellant deserves to be acquitted on the basis of benefit of doubt. 9. Per contra, Mr. Ashish Tiwari, learned State Counsel, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the Trial Court is absolutely justified in applying Section 106 of the Evidence Act in convicting the appellant for the said offence and therefore the appellant is not entitled to be acquitted on the basis of benefit of doubt and appeal deserves to be dismissed. 10. We have heard learned counsels for parties, considered their rival submissions made herein-above and have also gone through the records with utmost circumspection. 11. The first question as to whether the death of deceased Urmila was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of Dr. 10. We have heard learned counsels for parties, considered their rival submissions made herein-above and have also gone through the records with utmost circumspection. 11. The first question as to whether the death of deceased Urmila was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of Dr. Ramprasad Tirkey (PW-8) who has proved the post-mortem report (Exhibit P-15) in which the cause of death has been opined to be due to Coma and Syncope and the nature of death has been stated to be homicidal, which, in our considered opinion, is correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the Trial Court. 12. Now, as regards the question whether the appellant is the author of crime and has caused death of his wife Urmila, the Trial Court has invoked Section 106 of the Evidence Act to convict the appellant under Section 302 of IPC holding that his wife was found murdered in his house and it has not been explained in his statement recorded under Section 313 of CrPC as to how and under what circumstances she died. 13. At this stage, it would be appropriate to quote Section 106 of the Evidence Act, which 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.” 14. The said 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. 15. 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. 15. In the matter of Murlidhar (supra), 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 eyewitness. 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. 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. 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.” 16. Recently, in the matter of Balvir Singh v. 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 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. 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. 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 v. State reported in 343 U.S. 790=96 L.Ed. 1302, Raffel v. U.S. reported in 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”, “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 “evi-Ideuce 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.” 17. 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 the prosecution has been able to establish the fact that the death of deceased Urmila was homicidal in nature. In the instant case the prosecution has been able to establish the fact that the death of deceased Urmila was homicidal in nature. The Trial Court has recorded the finding that the deceased was found dead in the house of the appellant and the appellant has not been able to explain in his statement recorded under Section 313 of CrPC as to how and under what circumstances she died in his house and hence Section 106 of the Evidence Act would apply. However, it is a case of the prosecution that as per the statement of Surendra Vishwakarma (PW-1) made in para-4 of his statement, his cousin brother Upendra Verma is the eye-witness of the incident and who had seen the appellant assaulting the deceased Urmila and informed him on phone on which he rushed to the hospital where the deceased was found already dead by him and her head was seriously injured. As such, the prosecution proceeded on that basis as it is a case of eye-witness. It is not the case of the prosecution that the alleged assault by the appellant on the deceased was within the special knowledge of the appellant but it was also within the knowledge of the alleged eye-witness Upendra Vishwakarma who has neither been cited as a witness nor examined by the prosecution 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), the provision contained in Section 106 of the Evidence Act would not apply since the prosecution has not been able to discharge its primary burden of proving its case beyond reasonable doubt. Even otherwise, no specific question has been asked to the appellant in his examination under Section 313 of CrPC to explain as to how and under what circumstances his wife died in his house. In that view of the matter the appellant is entitled to be acquitted from the offence punishable under Section 302 of IPC on the basis of benefit of doubt. 18. Accordingly, the impugned judgment dated 10.6.2016 passed by the Trial Court convicting and sentencing the appellant for the offence under Section 302 of IPC, is hereby set aside/quashed and the appellant is acquitted from the said offence. Appellant is stated to be in jail since 12.12.2011. 18. Accordingly, the impugned judgment dated 10.6.2016 passed by the Trial Court convicting and sentencing the appellant for the offence under Section 302 of IPC, is hereby set aside/quashed and the appellant is acquitted from the said offence. Appellant is stated to be in jail since 12.12.2011. He be released from jail forthwith, if his detention is not required in connection with any other offence. 19. This criminal appeal, accordingly, stands allowed. 20. Let a certified copy of this judgment along with the original record be transmitted to the concerned Trial Court and the Superintendent of Jail where the appellant is presently lodged and suffering his jail sentence, for information and necessary action. 21. Before parting with the record, we express our appreciation and gratitude to Ms. Sharmila Singhai, learned senior counsel, who on a short notice extended scholarly assistance to this Court in deciding the appeal.