JUDGMENT : This criminal appeal under Section 374 (2) of Cr.P.C. is directed against the impugned judgment dated 30.01.2020 passed by the Additional Sessions Judge, Baikunthpur C.G. in Sessions Trial No.44/2019, by which the appellant herein has been convicted for the offence under Section 302 of Indian Penal Code (for short, 'IPC') and sentenced for life imprisonment with fine of Rs.1,000/-, in default of payment of fine additional rigorous imprisonment for one month. 2. Case of the prosecution, in brief, is that in the intervening night of 21- 22.03.2019 in between 11:00 pm to 8:00 am at village Murma Patelpara, appellant herein, after suspecting the character of his wife-Mangli Bai (hereinafter called as 'deceased'), committed her murder by assaulting her with wooden stick and after committing the murder of deceased, appellant severed the neck of deceased by blade and thereby committed the aforesaid offence. Further case of the prosecution is that on 22.03.2019 at about 11:00 pm, PW-6 Savitri heard the shoutings of her sister-in-law / deceased and when she went to her house, she saw the appellant assaulting the deceased by wooden stick on her head, as a result of which, she fell down on the floor. Thereafter, deceased asked for water from her and after giving water to her, she returned to her home. On the next day at about 8:00 am, she again went to the house of deceased and saw the dead body of the deceased lying on the floor. Thereafter, she informed the incident to police, pursuant to which, merg intimation was recorded vide Ex.P-17, FIR (Exs.P-18 & P-19) were registered against the appellant and spot map was prepared vide Ex.P-15. Inquest proceeding was conducted vide Ex.P-2 and dead body was sent for postmortem examination which was conducted by PW-8 Dr. Shreshth Mishra, who has proved the postmortem report Ex.P-15. According to postmortem report, cause of death of the deceased was stated to be asphyxia due to trachea disruption, hypovolemic shock due to internal as well as external haemorrhage and nature of death was opined to be homicidal. Memorandum statement of the appellant was recorded vide Ex.P-4, pursuant to which one wooden stick and one blade were seized from the appellant vide Ex.P-5 and from the spot, plain and blood stain soil and pieces of bangles were seized vide Ex.P-06. Memorandum statement of the appellant was recorded vide Ex.P-4, pursuant to which one wooden stick and one blade were seized from the appellant vide Ex.P-5 and from the spot, plain and blood stain soil and pieces of bangles were seized vide Ex.P-06. Seized articles were sent to FSL for chemical examination and as per FSL report (Ex.P-26), human blood of group 'B' has been found on the seized articles. Query report has also been obtained vide Ex.P-16 and as per the said report, injuries found on the body of the deceased could have been caused by the seized wooden stick and blade. Accused/appellant was arrested on 23.03.2019. 3. Statements of the witnesses were recorded under Section 161 of Cr.P.C. After completion of investigation, the appellant was charge- sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence. 4. In order to bring home the offence, prosecution has examined as many as 11 witnesses and brought on record 27 documents. In his defence, he has examined none and not exhibited any documents. 5. The trial Court after appreciation of oral and documentary evidence on record convicted the appellant for the offence under Section 302 of IPC and sentenced as above against which the present appeal has been preferred. 6. Learned counsel for the appellant would submit that the prosecution has failed to bring home the offence against the appellant beyond reasonable doubt and only on the basis of conjectures and surmises the trial Court held the appellant guilty. He would further submit that there are material contradictions and omissions in the statements of the prosecution witnesses. He would also submit that the prosecution has not been able to prove motive of the offence and that there is no sufficient evidence available on record to connect the appellant with the crime in question. The appellant is in jail since 23.03.2019. As such, his conviction is liable to be set aside. He would also submit that the prosecution has not been able to prove motive of the offence and that there is no sufficient evidence available on record to connect the appellant with the crime in question. The appellant is in jail since 23.03.2019. As such, his conviction is liable to be set aside. In alternative, he would submit that the case of the appellant would fall within Exception 4 to Section 300 of I.P.C. and, therefore, his conviction under Section 302 of I.P.C. be altered to Part-II of Section 304 of I.P.C as there was no premeditation on the part of the appellant to cause death of the deceased- Mangli Bai and it was only after seeing the deceased with PW-9 Man Singh in a compromising position, appellant assaulted the deceased with wooden stick. Thus, the present appeal deserves to be allowed in full or in part. In support of his contention, he has placed reliance on the decision of Hon'ble Supreme Court in the matter of Arjun and another vs State of Chhattisgarh, (2017) 3 SCC 247 . 7. Learned counsel for the State supports the impugned judgment and submits that the prosecution has brought home the offence against the appellant and has proved the case against the appellant beyond reasonable doubt and thus, the appellant has rightly been convicted and sentenced for the aforesaid offence. Therefore, the appeal deserves to be dismissed. 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. Now the first question would be whether the death of the deceased was homicidal in nature which has been answered in affirmative by the trial Court relying upon the statement of Dr. Shreshth Mishra (PW-8) who upon postmortem examination vide report (Ex.P-15) found the following injuries on the body of the deceased:- On external examination 1. A large lacerated wound on left parieto-occipital region size 8 x 2 x 1 cm; profuse bleeding due to scalp vain rupture. 2. a small deep cut size 2 x 0.5 x 2 cm over neck in part of the throat. 3. a deep bluish mark of the assault present over hip joint and blood clot found after cut; 4. multiple bruises over back, buttocks and thigh. On internal examination 1. trachea was cut. 2. there was congestion over both the lungs. 3. a small deep cut size 2 x 0.5 x 2 cm over neck in part of the throat. 3. a deep bluish mark of the assault present over hip joint and blood clot found after cut; 4. multiple bruises over back, buttocks and thigh. On internal examination 1. trachea was cut. 2. there was congestion over both the lungs. 3. there was blood clot over parietal cavity. 4. both the chambers of heart empty. 5. Esophagus was disrupted. 6. undigested food over small intestine of stomach. 7. there was partially formed stool in large intestine. 8. liver and spleen were normal. 9. there was rupture over right kidney with laceration size 2 x 1 x 1 cm. With the above injuries, he opined that cause of death of the deceased was stated to be asphyxia due to trachea disruption, hypovolemic shock due to internal as well as external haemorrhage and nature of death was opined to be homicidal and clearly came to the conclusion that death of the deceased was homicidal in nature. In our considered opinion, such a finding recorded by the trial Court that death of deceased was homicidal in nature is a correct finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 10. Now, the question would be, whether the appellant is the author of the crime in question? 11. Case of the prosecution is not based on direct evidence but it is based on circumstantial evidence. The five golden principles to constitute the panchsheel of the proof of a case based on circumstantial evidence have been narrated by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , in which it was observed in paragraph 153 as under :- “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 12. In this case, upon perusal of the evidence led by the prosecution the conduct of the appellant appears to be very improbable as he was suspecting the character of his deceased-wife. PW-6 Savitri has stated in her evidence that appellant is her brother-in-law (Jeth) and deceased was her sister-in-law (Jethani) and both were living in a separate house. She has further stated that she along with her husband & her in-laws were living in a separate house. Though this witness has turned hostile, but her evidence shows that the appellant was living with his wife- deceased in a separate house. 13. PW-1 Devsharan Singh has stated in his evidence that mother of the deceased (not examined) came to her house and informed that appellant has committed the murder of deceased. Thereafter, he informed about the incident to police over telephone and then, he went to the spot and saw the cutting mark on the neck of deceased and injury on her head. Thereafter, he informed about the incident to police over telephone and then, he went to the spot and saw the cutting mark on the neck of deceased and injury on her head. He has further stated that after the incident, police also reached to the spot and gave notice for panchnama of the dead body vide Ex.P-1 and thereafter, panchnama of dead body of the deceased was prepared vide Ex.P-2 and he has admitted his signatures on the said documents. 14. PW-2 Parasmani has stated in his evidence that mother of the deceased (not examined) came to his home and informed that appellant has committed the murder of deceased, upon which, he went to the spot and saw the deceased lying in the state of dead on the floor inside the room and there is blood on the floor and on the walls and that there is mark of stick and sharp edged weapon on the wall. He is also the witness of inquest proceedings (Ex.P-2) and duly proved the same. 15. PW-9 Mansingh has stated in his evidence that a day before Holi festival, he went to her sister's house who is the neighbour of the deceased where he saw that appellant and deceased were quarreling. He has further stated that at the time of quarrel, appellant had consumed liquor and was also quarreling with him as well by saying why he has come over there and abused him in filthy language. Thereafter, appellant again started quarreling with the deceased and he left from there. In cross-examination, he has admitted in para 4 that when he tried to pacify the dispute, appellant abused him in filthy language. He has further admitted in para 5 of his cross-examination that incident happened in between 5-6 pm. He has also admitted that he often used to visit his sister's house. The evidence of this witness shows that on the date of incident, appellant quarreled with the deceased and his statement is unrebbuted in cross-examination. 16. PW-10 Ravindra Anant, Inspector, is the Investigating Officer. He has also admitted that he often used to visit his sister's house. The evidence of this witness shows that on the date of incident, appellant quarreled with the deceased and his statement is unrebbuted in cross-examination. 16. PW-10 Ravindra Anant, Inspector, is the Investigating Officer. He has stated in his deposition that after getting information about the incident from PW-6 Savitri, he lodged the merg intimation Ex.P-1, recorded FIR Ex.P-18, send the information about the incident to Judicial Magistrate First Class vide Ex.P-19, prepared the spot map Ex.P-3, panchnama of dead body of deceased vide Ex.P-2 & application for postmortem of deceased Ex.P-10; collected plain and blood stained soil from the spot vide Ex.P-6; on 23.03.2019, recorded the memorandum statement of accused Ex.P-4 and pursuant to which wooden stick and blade were seized; recorded the statements of the witnesses and also send the seized articles to FSL for chemical examination vide Ex.P-26. He has admitted his signatures on the said documents and duly proved the same. 17. Now, we shall consider the circumstances found proved by the trial Court against appellant with regard to motive of the offence. 18. Admittedly, appellant and deceased were husband and wife and they were living in the home together and no other relatives were residing with them at that time, which is evident from the statement of PW-6 Savitri and the spot map Ex.P-15. Further, from the statements of PW-9 Man Singh and PW-2 Parasmani, it is evident that on the date of incident, appellant was present at home till evening. By the unrebutted statement of PW-9 Man Singh, it is also proved that on the date of incident, appellant quarreled with her wife in the evening and also abused him in filthy language by raising objection with respect to his presence in his neighborhood. Therefore, it is clear that appellant used to suspect the character of his wife-deceased and also used to have quarrels frequently and ultimately, on the date of incident, quarreled with the deceased and assaulted her with wooden stick and after committing her murder, severed her neck by blade after causing multiple injuries. As such, the motive of offence has rightly been held proved by the trial Court on the part of appellant. 19. As such, the motive of offence has rightly been held proved by the trial Court on the part of appellant. 19. The other circumstance relied upon by the prosecution and found proved by the trial Court is the recovery of wooden stick and blade from the appellant, vide memorandum statement Ex.P-4 & seizure memo Ex.P-5, which has been duly proved by PW-10 Ravindra Anant, Investigating Officer and the evidence of PW-1 Devsharan Singh also corroborated the evidence of PW-10 Ravindra Anant, Investigating Officer in that regard. This apart, as per FSL report Ex.26, human blood of group 'B' has been found on the seized articles i.e. wooden stick and blade. Moreover, query report (Ex.P-16) also suggests that injuries found over the body of the deceased could have been caused by the seized wooden stick and blade, as is proved from the statement of PW-8 Dr. Shreshth Mishra. As such, the aforesaid circumstantial evidence duly proved by the prosecution also establishes the complicity of the appellant in the crime in question. 20. As per the evidence of PW-2 Parasmani and PW-9 Man Singh, appellant and deceased were seen together lastly in the evening on the date of incident at home and on the next morning, deceased was found dead in her home where appellant was not present. Moreover, contents of Ex.P.2, which is the inquest proceeding and duly proved by P.W.2 Parasmani, also spell out that deceased was lying in the state of dead on the floor inside the room and there is blood on the floor and on the walls and that there is mark of stick and sharp edged weapon on the wall. The appellant was under obligation to explain as to how and in what circumstances, his wife-Mangli Bai found dead in the room where they reside permanently. 21. Now, the question would be, whether Section 106 of the Evidence Act is applicable or not? 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.” 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.” 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 of the Evidence Act, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 of the Evidence Act 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. 22. In the matter of Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404 , their Lordships of the Supreme Court have held that the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution, to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The Supreme Court while considering the word “especially” employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J., observed as under:- “11. … The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49(B).”Their Lordships further held that Section 106 of the Evidence Act cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts. 23. 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 I not complete, falsity of the defence is no ground to convict the accused. 24. When the chain I not complete, falsity of the defence is no ground to convict the accused. 24. 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. 25. The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar, AIR 1974 SC 778 and it has been held that burden of proving the case against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence. 26. 26. Returning to the facts of the present case in the light of principles laid down by their Lordships in the above referred matters, it is quite clear that on the date of incident, appellant and deceased were seen to be together living in a house and on the same day, PW-9 Man Singh, who is happened to be there, also saw the appellant quarreled with the deceased and on the next day, dead body of the deceased was found in the room where appellant and deceased were living together, as is evident from Ex.P.2 (inquest proceedings), which spells out that dead body of deceased was lying in the state of dead on the floor inside the room and there is blood on the floor and on the walls and that there is mark of stick and sharp edged weapon on the wall. Though, the appellant has taken a plea of alibi in his statement recorded under Section 313 of Cr.P.C. that at the time of incident, he had gone to drive the tractor of PW-2 Parasmani, but PW-2 Parasmani admitted in his evidence that on the date of incident, appellant had parked his vehicle near his house and did not go anywhere taking the tractor. Therefore, in absence of proper and sufficient explanation given by the appellant, the trial Court has rejected the plea of alibi taken by the appellant. Thus, considering the evidence of above witnesses coupled with the medical evidence of PW-8 Dr. Shreshth Mishra and his autopsy report (Ex.P-15) and also considering the memorandum statement of appellant, pursuant to which, wooden stick and blade were seized and that the injuries found over the body of the deceased could have been caused by the seized wooden stick and blade as suggested by query report (Ex.P-16), proved by PW-8 Dr. Shreshth Mishra and also considering the FSL report (Ex.P-26) suggesting human blood of group 'B' on the seized articles, it is clear that the appellant is the author of the crime in question. Shreshth Mishra and also considering the FSL report (Ex.P-26) suggesting human blood of group 'B' on the seized articles, it is clear that the appellant is the author of the crime in question. Moreover, the appellant was under obligation to offer explanation as to how and in what circumstances the deceased found dead in the room where both of them were living, but he has failed to offer such explanation in his examination under Section 313 of Cr.P.C. This apart, a perusal of merg intimation (Ex.P-17) & FIR (Exs.P-18 & 19) would clearly reveal that the incident occurred in the intervening night of 21-22.03.2019 in between 11:00 pm to 8:00 am and merg intimation (Ex.P-17) & FIR (Exs.P-18 & 19) were lodged on 22.03.2019 at 11:45 and 11:55 am respectively, which shows that without any delay both merg intimation and FIR were recorded & registered promptly mentioning the name of appellant, which was proved by PW-10 Ravindra Anant, Investigating Officer. It is pertinent mention here that the appellant has not only assaulted the deceased by wooden stick causing injury on her body, but also severed her neck (vital part) by use of blade, which ultimately led to her death. 27. In view of the above discussion, we are of the considered opinion that the above chain of circumstances is complete and leads only to the conclusion that it was the appellant, who caused the death of the deceased and he alone committed the murder of the deceased, as the prosecution has been able to prove the five golden principles which constitute the 'panchsheel' of proof of a case based on circumstantial evidence, as laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra) and the learned trial Court, upon due and proper appreciation of the evidence led before it, has rightly arrived at a conclusion that the accused-appellant is the perpetrator/author of the crime in question, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. 28. Having gone through the judgment relied upon by learned counsel for the appellant and the principles of law laid down therein, in the given facts and circumstances of the present case, the aforesaid judgment being distinguishable on facts, are of no help to the appellant. 29. 28. Having gone through the judgment relied upon by learned counsel for the appellant and the principles of law laid down therein, in the given facts and circumstances of the present case, the aforesaid judgment being distinguishable on facts, are of no help to the appellant. 29. Resultantly, the learned trial Court is absolutely justified in convicting the accused-appellant for offence under Section 302 of the I.P.C. We do not find any illegality in the impugned judgment of conviction and order of sentence dated 30.01.2020 passed by the learned trial Court. Consequently, this criminal appeal is dismissed.