JUDGMENT : Sanjay K. Agrawal, J. 1. Invoking appellate jurisdiction of this Court under Section 374(2) of the CrPC, the sole appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the impugned judgment and order dated 6-8-2016 passed by the Sessions Judge, Rajnandgaon in Sessions Trial No.50/2015, by which the appellant has been convicted and sentenced as under with a direction to run both the sentences concurrently: - Conviction Sentence Section 302 of the IPC Imprisonment for life & fine of Rs.1,000/-, in default, additional rigorous imprisonment for three months. Section 201 of the IPC Rigorous imprisonment for seven years & fine of Rs.1,000/-, in default, additional rigorous imprisonment for three months. Facts of the Case 2. Case of the prosecution, as projected by the prosecution and accepted by the trial Court, is that in the intervening night of 10th & 11th January, 2015, at Village Indawani, Police Station Somni, District Rajnandgaon, the appellant caused deep cut wrist injury to Bhuneshwari by which she died and thereafter, in order to screen himself from the offence, destroyed the evidence and thereby committed the offence. Further case of the prosecution is that on 25-12-2014, the appellant herein came to the house of his sister Draupati (PW-6) at Village Indawani and Bhuneshwari (now deceased) had also came along with her mother Sonbati (PW-11) to the said house which belonged to her uncle Deena Prasad (PW-5), who happens to be father-in-law of Draupati (PW-6). It is also the case of the prosecution that in the intervening night of 10-1-2015 & 11-1-2015, Bhuneshwari was watching television along with her family members and her mother had gone to sleep. At around 1 a.m. in the intervening night of 10-1-2015 & 11-1-2015, when mother of Bhuneshwari could not find Bhuneshwari nearby, she started looking for her and then found that the appellant was also missing. Draupati (PW-6) informed that she had sent the appellant for switching off the TV and thereafter, while conducting search of house & bathroom, it was noticed that the bathroom was bolted from inside and the body of the deceased and that of the appellant were lying in the pool of blood. Draupati (PW-6) informed that she had sent the appellant for switching off the TV and thereafter, while conducting search of house & bathroom, it was noticed that the bathroom was bolted from inside and the body of the deceased and that of the appellant were lying in the pool of blood. Information was given by Up-Sarpanch Dehar Lal Sahu (PW-7) to Police Station Somni vide Ex.P-24 upon which Investigating Officer Amarnath Tiwari (PW-15) reached to the spot of incident and sent the appellant and the deceased to the District Hospital, Rajnandgaon where deceased Bhuneshwari was declared dead. Zero morgue was registered vide Ex.P-5 and FIR was registered vide Ex.P-19. Seizure of articles including lined paper Ex.P-21 was made and same were seized vide Ex.P-4 disclosing that the deceased and the appellant wanted to get married, however, due to the family refusal and their non-acceptance, they have attempted to commit suicide. Sample writing of the appellant was also taken vide Ex.P-18 and it was seized vide Ex.P-14. Medical examination of the appellant was conducted vide Ex.P-1 by Dr. Nohar Prasad Jangde (PW-1). Naksha panchayatnama was prepared vide Ex.P-7 and spot map was prepared vide Ex.P-8. Dead body of deceased Bhuneshwari was subjected to postmortem vide Ex.P-11, which was conducted by Dr. S.N. Hussaini (PW-9) wherein cause of death was stated to be shock due to cut wrist injury along with evidence of neck compression, however, nature of death was not disclosed by the doctor. Opinion of medical expert that is called query report was sought regarding mode of death and injury on the body of the deceased, which was rendered vide Ex.P-13 by Dr. S.N. Hussaini (PW-9) on 15-1-2015. FIR was registered vide Ex.P-26 on 18-3-2015 against the appellant for offence under Sections 302 & 201 of the IPC and the appellant herein was arrested on 19-3-2015 vide Ex.P-16 and intimation of arrest was given on the same day vide Ex.P-15. FSL report dated 10-5-2016 was received vide Ex.P-31 according to which human blood was found on Articles A, C, E, F1 & F2. Statements of the witnesses were recorded under Section 161 of the CrPC. 3. FSL report dated 10-5-2016 was received vide Ex.P-31 according to which human blood was found on Articles A, C, E, F1 & F2. Statements of the witnesses were recorded under Section 161 of the CrPC. 3. Upon due investigation, the accused/appellant was charge-sheeted for offence under Sections 302 & 201 of the IPC and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions for conducting trial and for hearing and disposal in accordance with law. 4. The accused/appellant abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as seventeen witnesses and exhibited 31 documents along with Article A. The defence has examined none, but exhibited eight documents Exs.D-1 to D-8. Findings of the trial Court 5. The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant in the manner mentioned in the opening paragraph of this judgment finding that (1) the death of deceased Bhuneshwari was homicidal in nature; and (2) since the appellant was also staying in the house of his sister Draupati (PW-6) where the deceased along with her mother was also staying and the appellant & the deceased, both, were found inside the bathroom bolted from inside and the appellant has not explained as to how and in what circumstances, the deceased suffered deep cut wrist injury on account of which she died, therefore, the appellant is the author of the crime, against which the instant appeal under Section 374(2) of the CrPC has been preferred. Submissions 6. Mrs. Pooja Luniya, learned counsel appearing for the appellant, would submit that the appellant & deceased Bhuneshwari both were staying together in the house of Draupati (PW-6) and they wanted to marry and in the intervening night of 10th & 11th January, 2015, both of them decided to commit suicide and during the course, both have cut their wrists. She would further submit that in the suicide note Ex.P-21, all these facts have been mentioned and death could not be proved by the prosecution to be homicidal and is suicidal, therefore, even accepting all these facts, the appellant cannot be convicted for murder of the deceased, as such, he is entitled for acquittal on the basis of benefit of doubt. 7. Mr. 7. Mr. Ashish Tiwari, learned Government Advocate appearing for the State/respondent, would support the impugned judgment and oppose the appeal and submit that the appellant & the deceased, both, were living together in the house of Draupati (PW-6) and they were found inside the bathroom bolted from inside and therefore by virtue of Section 106 of the Evidence Act, the fact of she having received deep cut wrist injury, which was within the special knowledge of the appellant herein, has not been explained by the appellant in his statement recorded under Section 313 of the CrPC and no explanation whatsoever has been offered by him regarding injury suffered by the deceased. Therefore, the trial Court has rightly convicted the appellant for offence under Section 302 of the IPC which deserves to be maintained as it is strictly in accordance with law. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 9. After hearing learned counsel for the parties and on going through the record, following two questions arise for determination: - Questions involved (1) Whether death of deceased Bhuneshwari was homicidal in nature as for conviction under Section 302 of the IPC, death should be homicidal in nature, or it was suicidal in nature? (2) If death is homicidal, whether the trial Court is justified in invoking Section 106 of the Indian Evidence Act, 1872 for convicting the appellant herein? Answer to question No.1 10. Since the appellant has been convicted by the trial Court for offence punishable under Section 302 of the IPC holding that death of Bhuneshwari was culpable homicide under Section 299 of the IPC which amounted to murder under Section 300 of the IPC and is punishable under Section 302 of the IPC. In order to hold an accused guilty of murder, the prosecution must firstly prove that it is a culpable homicide and accused will come under the mischief of Section 299 of the IPC only when the act done by him has caused death. 11. At this stage, it would be relevant to notice the definition of 'culpable homicide' which is provided under Section 299 of IPC as under :- “299. 11. At this stage, it would be relevant to notice the definition of 'culpable homicide' which is provided under Section 299 of IPC as under :- “299. Culpable homicide.–Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” 12. Homicide is the killing of a human being by a human being. It is either lawful or unlawful. Unlawful homicide includes culpable homicide not amounting to murder under Section 299 of the IPC and murder under Section 300. Halsbury classifies homicide as follows :- “The term “homicide” is used to describe the killing of a human being by a human being. Such a killing may be lawful or it may be unlawful and criminal. Unlawful homicide includes murder, manslaughter, causing death by dangerous driving, killing in pursuance of a suicide pact, and infanticide.” 13. “Homicide”, as derived from latin, literally means the act of killing a human being. Under Section 299 of the IPC, homicide becomes culpable when a human being terminates the life of another in a blameworthy manner. Culpability depends on the knowledge, motive and the manner of the act of the accused. The offence is punishable under either Section 302, or Section 304 of the IPC which consists of two parts. (See Chenda @ Chanda Ram v. State of Chhattisgarh, 2014 CrLJ 172 .) 14. In the matter of Reaz-ud-din Shaikh v. Emperor, (1910) 11 CrLJ 295 : HS Gaur Penal Law of India, 10th Edn. Vol. 3, pp 2214-2235, it has been explained by Shuarf-ud-din J, as under :- “… all murder is culpable homicide, but all culpable homicide is not murder ... subject to the five exceptions to section 300, Indian Penal Code, every act that falls within one or more of the four clauses of section 300, Indian Penal Code, is murder and also falls within the definition of culpable homicide in Section 299, Indian Penal Code. subject to the five exceptions to section 300, Indian Penal Code, every act that falls within one or more of the four clauses of section 300, Indian Penal Code, is murder and also falls within the definition of culpable homicide in Section 299, Indian Penal Code. Every act that falls within any one or more of the sets of circumstances described in the five exceptions of that section, is by that fact taken out of section 300, Indian Penal Code but the act notwithstanding continues to be within section 299 and since it is not murder, it is culpable homicide not amounting to murder. Every act that falls within section 299 and does not fall within section 300, since it is not murder, is culpable homicide not amounting to murder.” 15. It is well settled law that in order to convict an accused under Section 302 of the IPC, the first and foremost aspect to be proved by the prosecution is the homicidal death and if the evidence on record produced by the prosecution falls short of the proof of homicidal death, the accused cannot be convicted under Section 302 of the IPC. (See Madho Singh v. State of Rajasthan, (2010) 15 SCC 588 and Chandrapal v. State of Chhattisgarh, 2022 SCC Online SC 705.) 16. Similarly, in the matter of Shobhau alias Shubhau v. State of M.P., 1998 CrLJ 3934 , it has been held by the Madhya Pradesh High Court that to prove an offence of murder the death should be homicidal of which onus in a criminal trial is upon the prosecution. In the absence of legal proof of the death being homicidal, because of the serious lacuna of not obtaining the report of Anatomy Expert to prove homicidal death, the benefit will go to the accused and not to the prosecution, as this seals the fate of the prosecution and on this ground the accused cannot be held to legal criminality of the offence under Section 302 of the Indian Penal Code. (See The State Government of M.P. v. Ramkrishna Ganpat Rao, AIR 1954 SC 20 and The State of Punjab v. Bhajan Singh, AIR 1975 SC 258 .) 17. (See The State Government of M.P. v. Ramkrishna Ganpat Rao, AIR 1954 SC 20 and The State of Punjab v. Bhajan Singh, AIR 1975 SC 258 .) 17. The Supreme Court, in the matter of Rupinder Singh Sandhu v. State of Punjab and others, (2018) 16 SCC 475 , has held that to find a man guilty of culpable homicide, the basic fact required to be established is that the accused caused the death. In the matter of M.B. Suresh v. State of Karnataka, (2014) 4 SCC 31 , it has been held that for holding an accused guilty of murder, the prosecution has first to prove that it is a culpable homicide. Culpable homicide is defined under Section 299 of the Indian Penal Code and an accused will come under the mischief of this section only when the act done by him has caused death. 18. Now, the submission on behalf of the appellant is that death is suicidal in nature and it was not homicidal in nature. 19. In order to consider the said plea, it would be appropriate to notice the difference between Homicidal and Suicidal Wounds based upon the Number, Direction and Extent of the Wounds for which we may profitably refer to Modi A Textbook of Medical Jurisprudence and Toxicology, Twenty Seventh Edition, Chapter 27, in which it has been held at page 765 as under: - 27.11 Difference between Suicidal, Homicidal and Accidental Wounds In case of death occurring from wounds, the question is often raised as to whether they were the result of suicide, homicide or homicide or accident. The answer is not always easy, but it can be given to some extent by a medical practitioner, by noting the following points: (a) The situation and character of the wounds. (b) The number, direction and extent of the wounds. (c) The condition of the locality, the surroundings of the wounded person and the circumstances of the injury. 27.11.1 The Situation and Character of the Wound Suicidal wounds are usually on the front or on the sides of the body, and affect the vital organs. They are usually incised, punctured or gunshot wounds. Suicidal incised wounds are generally situated on the front of the body in easily accessible position, especially, on the throat, chest, or wrist. These may be found in unusual regions. They are usually incised, punctured or gunshot wounds. Suicidal incised wounds are generally situated on the front of the body in easily accessible position, especially, on the throat, chest, or wrist. These may be found in unusual regions. Incised and punctured wounds situated on the back or in such a position as cannot be easily reached by a suicider, are homicidal, though a suicider may sometimes produce wounds on oneself which may have the appearance of being homicidal. Incised or punctured wounds may be caused accidentally by falling upon a sharp cutting weapon held in the hand or upon a sharp pointed object, or by sharp pieces of broken glass. Such wounds may be situated at such places as may give rise to a suspicion of homicide if there was no eyewitness at the time of the accident. Homicidal punctured wounds by a needle may cause death if in a vital part like heart, base of the brain of if a drug like insulin is injected in a vein. A needle may also be used for infanticide. Defensive wounds like cuts on the fingers and palms are produced during attempts by the injured person to seize the weapon in order to instinctively defend himself and are, therefore, indicative of homicide. Incised or lacerated wounds inflicted on the backs of the hands, wrists, between fingers and thumb, and forearms or on the back or any other part of the body during an endeavour to ward off blows on the head or other part of the body, are strongly suggestive of murder. Bruises may be seen if a blunt weapon is used to attack. Incised wounds on the nose, ears and genitals are usually homicidal, and are inflicted on account of jealousy or revenge in case of adultery. It should be noted that incised wounds on the genital organs are sometimes produced after death. Incised wounds of a trifling nature on the genitals may be self-inflicted. Thereafter, further at page 766, while dealing with the topic “The Number, Direction and Extent of the Wounds”, it has been held as under: - 27.11.2 The Number, Direction and Extent of the Wounds Several injuries on the body, if they are deep and extensive, are as a rule homicidal if we except accidents from falls, motor cars and other vehicles. In India, murderers select a heavy cutting instrument such as a gandasa (chopper), banka, khurpi, kulhari (axe) sword and inflict several deadly wounds on the head, cutting the skull hones and exposing the brain tissue, or on the neck cutting the larynx, oesophagus, large blood vessels, vertebrae and even the spinal cord. They are not generally satisfied by inflicting only one wound, but inflict several mortal wounds, and sometimes hack the body so much that the head is either severed altogether from the trunk, or remains, connected to it by a mere tag of skin. In addition to these, several wounds are usually inflicted on the trunk and limbs. It must be borne in mind, that in some cases, a murderer kills his victim by inflicting one or more fatal wounds and then, in order to divert the attention of the police to possible suicide, he inflicts on the dead body other wound which in themselves would have caused the death had they been produced during life. On the other hand, several severe injuries on the body may sometimes be suicidal. The presence of a large number of superficial wounds is presumptive evidence of self-infliction. Suicidal wounds caused by a cutting instrument on the neck are generally single and are situated either above the hyoid bone and open directly into the mouth or are situated below the hyoid bone and involve thyroid or cricoid cartilage, or the large blood vessels of one side. However, extensive wounds in the neck involving the large blood vessels of both sides and reaching the spine, though rare, are seen in suicidal cases. Similarly, Modi A Textbook of Medical Jurisprudence and Toxicology further provides Hesitation (tentative) Cuts as under: - 27.11.2.1 Hesitation (tentative) Cuts Sometimes, there are two or more superficial and cuts at the commencement of the wound, when the suicidal person is still hesitating or nervous, and then makes a deep cut, after plucking up courage to destroy himself. Similarly, Modi A Textbook of Medical Jurisprudence and Toxicology further provides Hesitation (tentative) Cuts as under: - 27.11.2.1 Hesitation (tentative) Cuts Sometimes, there are two or more superficial and cuts at the commencement of the wound, when the suicidal person is still hesitating or nervous, and then makes a deep cut, after plucking up courage to destroy himself. Suicidal wounds of the throat inflicted by a right-handed person are usually high up in the neck and are directed obliquely from a higher to a lower level and from below the left ear to the right side under the chin, and shows tailing (tapering) at the point of withdrawal of the weapon, while homicidal wounds of the throat, when inflicted from the front by a right-handed person, are, as a rule horizontal and directed from right to left; but the reverse is the case if the assailant happens to the left-handed. Again a homicidal wound on the throat may resemble a suicidal one, if the assailant has inflicted it from behind the victim or by standing on the right when the victim is lying. It is difficult to decide in the case of ambidextrous person, who can use both hands. The differences between suicidal and homicidal cuts are as follows: - Suicidal or Self-inflicted Homicidal Accessible and elective anatomical sites like wrist or neck Anywhere in the body Multiple, linear, parallel cuts Their position and shape very Usually incised stab wound Usually chop wounds. Stabs and lacerations may also be present They are superficial at the commencement and end is deeper They are deeper at the commencement and end is superficial In right handed persons from left to right and from above downwards Any direction Defence or protection cuts absent Defence or protection cuts present usually over the ulnar border of forearm Suicidal or Self-inflicted Homicidal Hesitation cuts usually present Hesitation cuts usually absentq Weapons are usually found grasped due to cadaveric spasm or found near body Weapons are usually absent Scene of crime is usually closed room. There are no disturbances of surroundings Scene of crime is disturbed and signs of struggle may present Clothes not damaged Clothes may be damaged Foreign bodies may not be found Foreign body in the form of mud and glass blades could be present. 20. There are no disturbances of surroundings Scene of crime is disturbed and signs of struggle may present Clothes not damaged Clothes may be damaged Foreign bodies may not be found Foreign body in the form of mud and glass blades could be present. 20. A Division Bench of the Patna High Court in the matter of Emperor v. Sheo Chandra Prasad, A.I.R. 1937 Patna 652 in a case where the body of the deceased was found lying flat with its face downwards and having several throat wounds caused by razor but only one of them being severe held that the position of the body and the nature of the wound indicated that the wound was suicidal and not homicidal. Their Lordships of the Patna High Court observed as under: - “… We have considered the descriptions of these injuries in the medical evidence in the light of the observations from Lyon's Medical Jurisprudence, which I have already cited. The inquest report on Ramlakhan Singh shows that his body was found lying flat with face downward on the floor of the room, so also we learn from the Sub-Inspector, was the position of Sheo Chandra himself. The two were lying close together. Ramlakhan besides a skin deep cut on the right middle finger had two incised wounds on the neck, one of these was 1" x ¼” x skin deep, and the other was the severe one which caused his death, i.e. an incised wound 5” x 1 ½" x muscle deep on the right side of the neck cutting the larynx and trachea laterally muscles and platina of the right side of the neck, and external carotid artery being divided one vertebra was grazed. The description fits exactly with the characteristics which, according to Lyon are to be found in suicidal injuries, and it is impossible to say that the evidence excludes or indeed renders improbable the view that Ramlakhan may have committed suicide. The third charge is in respect of the accused's own alleged attempt to commit suicide. It is in evidence that he like Ramlakhan was found lying on his face on the floor. The razor was on the floor about one cubit distant from his right hand. The third charge is in respect of the accused's own alleged attempt to commit suicide. It is in evidence that he like Ramlakhan was found lying on his face on the floor. The razor was on the floor about one cubit distant from his right hand. There were three injuries on the neck of which two were incised wounds skin deep and the third was an incised wound on the front of the neck about 5" x 1 ½" x muscle deep cutting the larynx and oesophagus and fracturing the cornea of the right hyoid bone. It can hardly be coincidence that these injuries should agree so closely with this observation of Lyon: A suicide may make more than one wound, but only one of these will be severe, the remainder will be tentative cuts made while he was screwing up his determination to the point of making the final fatal wound. In the case of this accused, the medical opinion also is definitely to the effect that the injuries found on him were suicidal in nature. In coming to this conclusion the Assistant Surgeon had also had regard to the direction of the third i.e. severe injury on Sheo Chandra's throat; it was deeper on the left side than on the right, the tail of the wound being towards the right. This would be expected assuming the suicide to have held the weapon in his right hand and drawn it across the throat from left to right. Mr. S.N. Sahay presses on us the possibility of some outsider having made an entrance and committed the homicidal assaults on Ramlakhan and Sheo Chandra. We have considered his argument but do not regard that as a possibility. The circumstances all seem to point unmistakably to the injuries on Sheo Chandra being due to an attempt by him to commit suicide.” 21. At this stage, it would be appropriate to refer to the testimony of Dr. We have considered his argument but do not regard that as a possibility. The circumstances all seem to point unmistakably to the injuries on Sheo Chandra being due to an attempt by him to commit suicide.” 21. At this stage, it would be appropriate to refer to the testimony of Dr. S.N. Hussaini (PW-9) – medical witness, who has conducted postmortem over the body of deceased Bhuneshwari and found following injuries over the body of the deceased: - 2- 'ko ijh{k.k ij tks pksV feys Fks og bl izdkj gS& 1- bUlkbt+M ÅaM cka;k dykbZ esa ftlds ,d Nksj ij dbZ NksVs NksVs Ropk ,oa mlds uhps tks ekal gS ds VqdM+s Fks vkSj ?kko dk vkdkj 4-3 lseh- x 2 lseh- x elYl ul ,oa VsUMu dh xgjkbZ rd FkkA jsfM;y ul tks Fkh og dVh gqbZ Fkh] mlds lkFk esa vU; NksVh uls Hkh dVh gqbZ FkhA 2- rhu jsfMl czkmu vksoy lsi dUV~;wtu BqM~Mh ,oa lcesaVy esa Fks] ftudk vkdkj 1 lseh x 1 lseh- ls ysdj 1 lseh x 0-5 lseh- FkkA 3- xksy vkdkj xgjk yky vkSj Hkqjs jax dk dUV~;wtu cka;s xky ij Fkk ,axy vkWQ ekmFk esa Fkk ftldk vkdkj 1-5 lseh x 1-2 lseh- FkkA 4- dUV~;wtu ,czstu cka;s gkFk ds Mkjle ij Fkk ftldk vkdkj 1-5 lseh x 1 lseh- FkkA 5- dUV~;wtu ,czstu lqijk ,DlVuZy ukp ij Fkk ftldk vkdkj 1 lseh- x 1 lseh- FkkA 6- xnZu ds nka;s rjQ jsfMl ,czsMsM czwLM ,fj;k ftldk vkdkj 2-5 lseh- x 4 lseh- Fkk vkSj mlds lkFk LVªhi tSlk xys ds lkeus ds Hkkx esa czwLM ,czsMM t[e ftldk vkdkj 11 lseh x 1 lseh- Fkk] vkSj xys ij dh peM+h Ropk gVkus ds ckn esa ghesVksek ftldk vkdkj 1 lseh x 0-5 lseh- dk nka;s rjQ LVuZy csyh vkWQ LVuksZ esLVkbM elYl ds ds uhps Fkk] lkFk gh ,slk ,d vkSj gheksVksek cka;s rjQ LVuksZ gkbM elYl ds uhps Fkk ftldk vkdkj 0-5 lseh x 0-5 lseh- FkkA 7- lwtu ds :i esa dUV~;wtu iwjs nka;k xky ij Fkk] nka;s xky ds iSjkbVsM fjt+u esa Fkk ftldk vkdkj 2 lseh- x 2 lseh- FkkA 3- e`frdk ds vkarfjd ijh{k.k esa g`n;] QsQM+s] varfM+;ka] dysts] xqnkZ rFkk vU; lHkh vkarfjd vkxZu Bhd FksA 4- esjs erkuqlkj e`frdk dh e`R;q 'kkWd M~;w Vw fjLV batjh ,ykax foFk ,foMsal vkWQ usd dEizs'ku ls gqbZ FkhA 'ko ijh{k.k fjiksVZ iz-ih&11 gS ftlds v ls v Hkkx ij esjs gLrk{kj gSA mDr fjiksVZ esjs gLrfyfi esa gSA e`frdk dk iksLV ekVZe MkW- lksgnzk Bkdqj ds lkFk fd;k FkkA MkW- Bkdqj dh iz-ih&11 ij c ls c Hkkx ij gLrk{kj gSA 22. However, with regard to medical opinion, certain queries were raised by the investigating officer vide Ex.P-12 which are as under: - (I) cut wrist injury e`frdk Lo;a viuh dykbZ dkV dj dh gS vFkok vU; O;fDr ds }kjk pksaV dkfjr dh x;h gSA (II) xnZu ncus dh pksaV izk.k ?kkrd gS vFkok cutwrist injury igqapkrs oDr xnZu nck;k x;k gSA (III) wrist cut injury ,d ckj dh gS fd dbZ ckj dh gS multiple fpt gS heap-up over D;k gS Li"V djus dh d`ik gksA The said queries were replied by Dr. S.N. Hussaini (PW-9) vide his query report Ex.P-13, which is as under: - (1) Incised wound (cut injury) over left wrist was directed from left to right, was over accessible part of body but on the other hand it was not associated with the “Hesitation Cut” and very deep seated even the muscles tendons were partly cut so that possibility of infliction by other cannot be denied. (2) Neck compression mark which were present over neck of deceased were associated with minimal internal structure of neck, to label any compression injury as fatal and non-fatal various factors are to be reviewed like compression producing gent, the time length for which neck was compressed & force applied etc. however it is given in P.M. report in column of cause of death. (3) As it is mentioned in P.M. report at beginning there are multiple heap up ends means it was drawn more than one time over area of infliction. 22A. It is quite apparent that while replying query No.1 whether the deep cut injury on left wrist was self-inflicted injury or it was caused by some other person, the doctor – Dr. S.N. Hussaini (PW-9) has informed that cut injury over left wrist was directed from left to right, however, he has only expressed the view that possibility of infliction by other person cannot be denied. As such, Dr. S.N. Hussaini (PW-9) did not say clearly and emphatically that injury suffered by deceased Bhuneshwari was by other person or did not give any clear cut opinion that the injury suffered by the deceased was the injury inflicted by some other person. Similarly, question No.3 put to Dr. As such, Dr. S.N. Hussaini (PW-9) did not say clearly and emphatically that injury suffered by deceased Bhuneshwari was by other person or did not give any clear cut opinion that the injury suffered by the deceased was the injury inflicted by some other person. Similarly, question No.3 put to Dr. S.N. Hussaini (PW-9), whether the deep cut injury on wrist was inflicted once or it was multiple, has been answered by him that it was more than once over the area of infliction and the doctor has also proved the same in his statement before the Court. However, in cross-examination paragraph 10, he has stated that injury No.1 suffered by the deceased was easily accessible to the deceased and if the right handed person causes injury, then it will be from left to right, and the injury suffered by the deceased was from left to right. It has further been stated in paragraph 14 that the possibility of inflicting multiple injuries on his body by a person intending to commit suicide, while he was in conscious state of mind, cannot be denied. In paragraph 21, he has stated that injury No.1 i.e. deep cut injury on veins was sufficient to cause death. 23. As such, considering the nature of injury, particularly injury No.1 and direction of the said injury and further considering the opinion of the doctor qua injury No.1 that he did not say that injury cannot be inflicted by the person intending to commit suicide and did not say clearly that it was inflicted by other person and only expressed opinion that the possibility of infliction by other person cannot be ruled out and the said opinion has been accepted by the trial Court in paragraph 27 of the judgment relying upon the opinion evidence of Dr. S.N. Hussaini (PW-9) and also considering the statement of Dr. S.N. Hussaini (PW-9) that the injury was multiple injuries and that he did not specifically say that it could be inflicted by others, he only expressed an opinion that possibility of causing said injury by others cannot be ruled out and in view of difference between suicidal and homicidal wounds by Modi A Textbook of Medical Jurisprudence and Toxicology as noticed by us in the preceding paragraphs followed by the Patna High Court in Sheo Chandra Prasad’s case (supra) and also in view of the opinion evidence of Dr. S.N. Hussaini (PW-9), we are of the considered opinion that all the circumstances seem to point-out unmistakably towards one conclusion that wound on deceased Bhuneshwari may be due to attempt by her to commit suicide in which she eventually died and in that view of the matter, the finding recorded by the trial Court in paragraph 29 of the judgment that death was homicidal in nature relying upon the statement of Dr. S.N. Hussaini (PW-9) is incorrect finding of fact not based on the evidence available on record. It is held that wounds found over the body of the deceased were suicidal in nature. Answer to question No.2 24. The trial Court further proceeded with the aspect that the appellant & the deceased both were found inside the bathroom in the house of Draupati (PW-6) being common relative of both the appellant & the deceased and both were staying therein; the bathroom was bolted from inside and both were found in injured condition and they were taken to Rajnandgaon hospital where Bhuneshwari was declared dead and the appellant suffered injury and he was medically examined by Dr. Nohar Prasad Jangde (PW-1). Therefore, the appellant was liable to explain as to how and on what circumstances, Bhuneshwari suffered grievous injuries and died, which he has not explained in his statement under Section 313 of the CrPC. As such, Section 106 of the Evidence Act would apply, as it was within the special knowledge of the appellant being in the bathroom along with deceased Bhuneshwari bolted from inside and no other person could have the knowledge as to how she suffered injuries and died, and thus, the trial Court held him guilty for the aforesaid offence invoking Section 106 of the Indian Evidence Act, 1872. 25. Now, the question is, whether Section 106 of the Evidence Act was rightly invoked by the trial Court? 26. 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.” 27. This provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. 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.” 27. 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. 28. 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. 29. 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.” 30. When the chain is not complete, falsity of the defence is no ground to convict the accused.” 30. 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. 31. In the matter of Sawal Das v. State of Bihar, AIR 1974 SC 778 , the Supreme Court has clearly held that Section 106 of the Evidence Act would not absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. 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. The crucial question in the case before us is: Has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt? 32. Furthermore, in a recent decision in the matter of Balvir Singh v. State of Uttarakhand, 2023 SCC OnLine SC 1261, their Lordships of the Supreme Court, reviewing their 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 observed 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. 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. 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. 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.” 33. Bearing in mind the principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments (supra), it is quite vivid that the burden lies on the prosecution to establish that the act alleged to constitute murder was really the act of a person other than the deceased. The burden is not cast upon an accused person of proving that no crime has been committed. The prosecution is not absolved from the duty of proving that a crime was committed and the prosecution has to prove the offence beyond reasonable doubt. 34. The burden is not cast upon an accused person of proving that no crime has been committed. The prosecution is not absolved from the duty of proving that a crime was committed and the prosecution has to prove the offence beyond reasonable doubt. 34. Coming to the facts of the case, it has already been held that the prosecution has not been able to prove that death of deceased Bhuneshwari was suicidal in nature, however, the trial Court holding the death to be homicidal in nature proceeded further and convicted the appellant with the aid of Section 106 of the Evidence Act holding that dead body of the deceased was found inside the bathroom along with the appellant and the appellant has failed to explain in his examination under Section 313 of the CrPC, under what circumstances she died. However, it is well settled law that Section 106 of the Evidence Act would not absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt and the prosecution has to discharge its initial or general and primary burden to prove the guilt of the accused beyond reasonable doubt. In the instant case, even the death to be homicidal in nature has not been proved and except proving that dead body of the deceased was found in the bathroom along with the appellant, no further evidence has been brought on record. In that view of the matter, the trial Court is absolutely unjustified in convicting the appellant with the aid of Section 106 of the Evidence Act, as it is the case of the prosecution that the body of the deceased was found inside the bathroom where the appellant was also found injured in the pool of blood and he also suffered injury which was sufficient to cause death in the ordinary course of nature, as stated by Dr. Nohar Prasad Jangde (PW-1) in his statement before the Court, as the appellant has deep cut injury on left wrist in the size of 5 c.m. x 2 c.m. x 2 c.m. which the prosecution has not explained as to how he has suffered injury. In that view of the matter, application of Section 106 of the Evidence Act to hold the appellant guilty is totally contrary to the well settled law in this behalf. 35. In that view of the matter, application of Section 106 of the Evidence Act to hold the appellant guilty is totally contrary to the well settled law in this behalf. 35. Since the appellant has suffered injury as per the statement of Dr. Nohar Prasad Jangde (PW-1) and proved by Dr. Nohar Prasad Jangde (PW-1), which was sufficient to cause death, and once serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the court as to the circumstances under which the occurrence originated. But before this obligation is placed on the prosecution, two conditions must be satisfied : (1) that the injuries on the person of the accused must be very serious and severe and not superficial ; (2) that it must be shown that these injuries must have been caused at the time of the occurrence in question. (See Jagdish v. State of Rajasthan, (1979) 2 SCC 178 followed in the matter of Hare Krishna Singh and others v. State of Bihar, (1988) 2 SCC 95 .) 36. Now, the question is, whether the two conditions as held in Jagdish (supra) followed in Hare Krishna Singh (supra), have been fulfilled in the present case or not? 37. So far as condition No.1 is concerned, a careful perusal of the statement of Dr. Nohar Prasad Jangde (PW-1) in paragraph 1 read with paragraph 6 would show that the injury suffered by the appellant was sufficient in the ordinary course of nature to cause death. So far as the second condition is concerned, as per Exs.P-24C & P-25C, the appellant & the deceased both were found in the bathroom of Draupati (PW-6) and veins of left hand wrists of both of them suffered deep cut injuries and both were admitted to the District Hospital, Rajnandgaon where immediately during treatment, Bhuneshwari died, whereas the present appellant was admitted and he was treated by Dr. Nohar Prasad Jangde (PW-1) on 11-1-2015 at 4.15 a.m., who has proved the injury report Ex.P-1 of the appellant and in the query report Ex.P-2 proved by Dr. Nohar Prasad Jangde (PW-1) on 11-1-2015 at 4.15 a.m., who has proved the injury report Ex.P-1 of the appellant and in the query report Ex.P-2 proved by Dr. Nohar Prasad Jangde (PW-1), he has expressed opinion that it is not possible to say whether the patient (appellant) has suffered self-inflicted injury or it was caused by others, as it is the case of the prosecution that the injury may have been caused by other(s). As per the statements of Thakur Ram (PW-3), Dron Kumar (PW-4) & Deena Prasad (PW-5), both the appellant & the deceased were found in injured condition in the house of Draupati (PW-6) in bathroom, both have suffered injuries and veins of their left hand wrists were deeply cut. As such, the second condition that injuries must have been caused at the time of occurrence, is clearly satisfied. Thereafter, it was the prosecution to explain as to how the appellant has suffered grevious injury sufficient in the ordinary course of nature to cause death. It is the case of the appellant before the trial Court that Exs.P-18 & P-21 – love letters would establish that it is a case of suicide. In that view of the matter, the prosecution was obliged to explain the injury sustained by the appellant. 38. In the matter of Mohar Rai v. State of Bihar, AIR 1968 SC 1281 , it has been laid down that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the case of altercation is a very important circumstance from which the court can draw the following inferences : (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version ; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable ; and (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. As such, in the instant case, by not explaining the injury sustained by the accused/appellant which was sufficient to cause death as per Dr. As such, in the instant case, by not explaining the injury sustained by the accused/appellant which was sufficient to cause death as per Dr. Nohar Prasad Jangde (PW-1) and which the appellant has suffered in the same occurrence, it appears that the prosecution has suppressed the genesis and the origin of the occurrence and has not presented the true version. 39. The Supreme Court in the matter of Rajender Singh and others v. State of Bihar, (2000) 4 SCC 298 held that when injuries sustained by accused are grievous, non-explanation of the same would render the prosecution case suspicious, and observed as under: - “4. So far as the question whether non-explanation of the injuries on accused Rajender ipso facto can be held to be fatal to the prosecution case, it is too well settled that ordinarily the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in the course of the occurrence, if the injuries are minor in nature, but at the same time if the prosecution fails to explain a grievous injury on one of the accused persons which is established to have been caused in the course of the same occurrence then certainly the court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident. In the case in hand accused-appellant Rajender had one penetrating wound, three incised wounds and one lacerated wound and of these injuries, the penetrating wound on the left axillary area in the 5th intercostal space ½” x ?” x ¾” was grievous in nature as per the evidence of the doctor, PW-3 who had examined him. On the basis of the evidence of PW-3 as well as PW-11 the courts have come to the conclusion that there is no room for doubt that the appellants and their men had injuries on their person on the date of the occurrence. The question, therefore, that remains to be considered is whether non-explanation of the said injuries on accused-appellant Rajender can form the basis of a conclusion that the prosecution version is untrue. The question, therefore, that remains to be considered is whether non-explanation of the said injuries on accused-appellant Rajender can form the basis of a conclusion that the prosecution version is untrue. In Mohar Rai and Bharath Rai v. State of Bihar ( AIR 1968 SC 1281 ) this Court had held that the failure of the prosecution to offer any explanation regarding the injuries found on the accused shows that the evidence of the prosecution witness relating to the incident is not true or at any rate, not wholly true and further, those injuries probabilise the plea taken by the accused persons. But in Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394 , this Court considered Mohar Rai (supra) and came to hold that non-explanation of the injuries on the accused by the prosecution may affect the prosecution case and such non-explanation may assume greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution. The question was considered by a three-Judge Bench of this Court in the case of Vijayee Singh v. State of U.P., (1990) 3 SCC 190 , and this Court held that if the prosecution evidence is clear, cogent and creditworthy and the court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence and consequently the whole case and much depends on the facts and circumstances of each case. In Vijayee Singh case (supra) the Court held that non-explanation of injury on the accused person does not affect the prosecution case as a whole.” 40. Finally coming to the facts of the case, it is quite vivid that firstly, the prosecution has failed to prove that death of Bhuneshwari was homicidal in nature, which the prosecution was obliged for convicting a person of an offence under Section 302 of the IPC to be homicidal in nature or that it was suicidal in nature. Finally coming to the facts of the case, it is quite vivid that firstly, the prosecution has failed to prove that death of Bhuneshwari was homicidal in nature, which the prosecution was obliged for convicting a person of an offence under Section 302 of the IPC to be homicidal in nature or that it was suicidal in nature. Secondly, invocation of Section 106 of the Evidence Act by the trial Court to draw inference that the incident was within the special knowledge of the appellant and deceased Bhuneshwari was in love with the appellant is also factually and legally incorrect, as Section 106 of the Evidence Act would not absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. 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. Thirdly, the injury on the person of the accused was very serious and grievous in nature as proved by Dr. Nohar Prasad Jangde (PW-1) who has clearly stated that it was sufficient in the ordinary course of nature to cause death and it has been established on record that the said injury on the person of the appellant has been caused at the time of occurrence in question and sufficient foundation has been laid on behalf of the appellant in the cross-examination and thereby as held in Mohar Rai (supra), it is quite clear that the prosecution has suppressed the genesis and the origin of the occurrence and has not presented the true version. As such, the defence of the appellant that it is a case of suicide by the deceased, is rendered probable so as to throw doubt on the prosecution case. Therefore, for all these three reasons stated herein-above, we are of the considered opinion that the appellant is entitled for acquittal on the basis of benefit of doubt. 41. In view of the aforesaid discussion, we are unable to sustain the conviction of the appellant under Sections 302 & 201 of the IPC. As such, conviction and sentences imposed upon him under Sections 302 & 201 of the IPC are liable to be set-aside and are hereby set-aside. 41. In view of the aforesaid discussion, we are unable to sustain the conviction of the appellant under Sections 302 & 201 of the IPC. As such, conviction and sentences imposed upon him under Sections 302 & 201 of the IPC are liable to be set-aside and are hereby set-aside. The appellant is acquitted of the said charges extending him the benefit of doubt. Since he is in jail, he be set at liberty forthwith if not required to be detained under any other process of law. 42. The criminal appeal is allowed. 43. 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.