Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 1502 (GUJ)

State Of Gujarat v. Sanjaykumar Ajitkumar Patel

2024-07-03

CHEEKATI MANAVENDRANATH ROY, UMESH A.TRIVEDI

body2024
JUDGMENT : (Umesh A. Trivedi, J.) : 1. This Appeal under Section 378 of the Code of Criminal Procedure, 1973 is filed by the State challenging the judgment and order of acquittal passed by learned Additional Sessions Judge, Banaskantha at Palanpur dated 31.01.1995 rendered in Sessions Case No. 115 of 1993, whereby respondent – accused came to be acquitted of the charges leveled against him. 2. As per the case of the prosecution, first-informant – Leenaben married one Vipulbhai Gordhandas Kothari and out of the wedlock, she had a baby girl named Shweta, who is the deceased in the present case. At the relevant time, deceased – Shweta was aged about 8 years. After the birth of deceased – Shweta, husband of Leenaben i.e. father of Shweta, suffered Parkinson Disease. Despite prolonged treatment, his condition did not improve. Therefore, first-informant – Leenaben undertook the work earlier undertaken by her husband as he was removed from where he was working because of his ailment. 2.1 In or around May, 1993, as the house where they were staying was to be repaired, they shifted to some other place and there accused, in the present case, developed some relationship with first-informant – Leenaben. Accused assured the family to provide all monetary as also other help needed to sustain their lives. By that, the accused took into confidence the husband of first-informant and he started taking disadvantage of the situation developing relationship with first- informant. 2.2 Again, on insistence of the accused in and around June, 1993, they all went to Palitana along with her husband to get their daughter admitted in “Shravik Ashram”. However, she was not given admission there and because of which, accused took quarrel with the husband of the first-informant and he beat him. From there, they went to Killa-Pardi, District: Valsad but there also they failed to get admission of their daughter. Therefore, all returned back to Mumbai. On returning to Mumbai, accused was driven out from the house by the husband of the first informant. On that very day i.e. on 18.06.1993, as per the case of prosecution, elder brother of the first-informant telephoned and asked her to meet him at Malad. On the next day, she along with her daughter – Shweta, at about 5 a.m., went to Vasai station and from there, they reached Borivali, where accused met them. On that very day i.e. on 18.06.1993, as per the case of prosecution, elder brother of the first-informant telephoned and asked her to meet him at Malad. On the next day, she along with her daughter – Shweta, at about 5 a.m., went to Vasai station and from there, they reached Borivali, where accused met them. There, accused promised to make her happy and persuaded her not to move to her brother’s house as he will not permit her to move out of the house. On continued persuasion, they came at Virar station, where accused informed first-informant to leave her daughter Shweta there and asked her to reach the house, to such proposal she refused. Therefore, they all sat in a truck and came to Ankleshwar, and from Ankleshwar, they reached Unava on 20.06.1993. 2.3 The accused tried to get an affidavit from the first- informant that she voluntarily stays with him through one Ashok Barot at Unjha. To that proposal also, first-informant refused, and therefore, he beat her up also. However, as coming out from the First Information Report, on 23.06.1993, such affidavit came to be affirmed by the first-informant at Mehsana through one Yogesh Bhavsar, Advocate. 2.4 Thereafter, two gold bangles, approximately of 30 Grams were sold to Choksi Navneetrai Joitaram Patel. Thereafter, they went to Charup Jain Dharamshala and stayed there for two days and came back to Mehsana. 2.5 After staying at different places, on 03.07.1993, at about 9:30 p.m., they stayed at Jain Bhojan Shala, Atithi Gruh, Palanpur, where accused – Sanjaykumar showed his surname to be ‘Shah’ and stayed with first-informant and his daughter. There, they stayed on 13.07.1993 up to 4:30 a.m.. During that time, accused beat the first-informant as also her daughter. 2.6 As per the allegation in the First Information Report, while beating deceased – Shweta, accused used to taunt her that she is bad blood of her handicapped father and to go there. He had also disowned her to bring her up. Deceased – Shweta was told to move herself from them or she would be removed and be sent to God. 2.7 As per the further case of the prosecution, on 13.07.1993 at about 4:30 p.m., they hired a house from one Fulchand Manilal Shah for a rent of Rs. 500/- per month. Further, they purchased two mattresses and the bed sheets from Khadi Gram Udhyog Bhandar. 2.7 As per the further case of the prosecution, on 13.07.1993 at about 4:30 p.m., they hired a house from one Fulchand Manilal Shah for a rent of Rs. 500/- per month. Further, they purchased two mattresses and the bed sheets from Khadi Gram Udhyog Bhandar. 2.8 On 19.07.1993 at about 2:30 a.m., deceased – Shweta woke up from her sleep and asked for food and water. Therefore, first-informant woke up the accused to which he got enraged as his sleep was disturbed. Thus, accused gave kick and fist blows to first-informant as also her daughter – Shweta. As it is further coming out, they were not allowed to raise shouts. As per the First Information Report, she was caught hold from her hair and thrashed on the floor. There were several injury marks on various parts of the body of deceased – Shweta, and because of said beating, she became unconscious. Accused beat first-informant as well. 2.9 It is the case of the prosecution that, at about 7:00 a.m. in the morning, the landlord called them for tea, therefore, accused permitted first-informant to go alone. Since first-informant informed the landlord about the incident, he advised them to take Shweta to Civil Hospital. Therefore, complainant asked the accused to take her to the hospital. Therefore, accused called for a rickshaw bearing Registration No. GRK-1316 and went to the hospital. Accused asked first-informant not to accompany them, and therefore, son of the landlord Fulchandbhai and one other person followed accused to the Civil Hospital. Since, at about 10 a.m. in the morning in the Civil Hospital, Shweta – daughter of the first informant was found dead, they brought her back to the house where they were staying on rent. However, despite Shweta died, accused persuaded first-informant to take her for further treatment at higher district place – Patan. 2.10 They started towards Patan and there accused informed first-informant as also the rickshawala that since the deceased has died because of beating, her dead body be disposed of. To the said request, first-informant flatly refused, and therefore, they came back to Civil Hospital, Palanpur. Thereafter, accused, entrusting all the belongings to the first- informant, took the body of deceased – Shweta for the purpose of cremation at the crematorium. To the said request, first-informant flatly refused, and therefore, they came back to Civil Hospital, Palanpur. Thereafter, accused, entrusting all the belongings to the first- informant, took the body of deceased – Shweta for the purpose of cremation at the crematorium. As single person had come for the purpose of cremation of deceased Shweta, aged 8 years, with belongings, the persons, who were already there doubted his activity, and therefore, they informed the Police. On Police reaching there, with the dead body of deceased – Shweta, accused was taken to the Police station. Since first- informant reached Police station, she gave FIR there, pursuant to which an offence came to be registered. 2.11 After thorough investigation and on conclusion of it, charge-sheet came to be filed in the Court of learned Magistrate and since Magistrate did not have jurisdiction to try the case, he committed it to the Court of Sessions. On committal of the case to the Court of Sessions, charge came to be framed vide Exhibit-3 for an offence under Sections 302 and 323 of the Indian Penal Code (hereinafter referred to as “IPC”) against the accused. Since accused did not plead guilty and claimed to be tried, prosecution examined in all 13 witnesses and produced and proved nearly 20 documents. 2.12 On hearing the learned Additional Public Prosecutor as also learned advocate for the accused and appreciating the evidence led before it, learned Sessions Judge passed the impugned judgment and order of acquittal, as aforesaid. 3. Heard Ms. Jyoti Bhatt, learned Additional Public Prosecutor as also Mr. Mrudul Barot, learned advocate for the respondent – accused. 3.1 From the order-sheet, it appears that bailable warrant came to be issued against the respondent – accused vide order dated 27.04.2022. However, it is still not served. Considering the fact that the respondent – accused faces a charge for an offence under Section 302 of the ‘IPC’, even if, we are to allow this Appeal and convict him for an offence under Section 302 of the ‘IPC’, considering the evidence led before the Court, if minimum punishment provided for an offence i.e. life imprisonment is to be awarded, he is not required to be heard, and therefore, we undertook the exercise of hearing the Appeal, which is of the year 1995. 4. Ms. 4. Ms. Jyoti Bhatt, learned Additional Public Prosecutor, submitted that since deceased Shweta was an obstruction to the relationship of the accused and her mother, there was a strong motive to kill deceased Shweta. As per the case of the prosecution, even the respondent – accused threatened deceased Shweta as also her mother to remove her from her way by sending her to the house of God. Alongwith the motive, there appears, according to the submission of the learned Additional Public Prosecutor, circumstance that except P.W. 11 – Leenaben mother of the deceased, accused and the deceased, no one else was in the room where they were staying on rent and the alleged incident took place. Therefore, either P.W. 11 – Leenaben has to account for the fatal injuries caused to Shweta at midnight i.e. 2:30 a.m. on 19.07.1993 or the accused can account for the same and none else. She has further submitted that since the real mother of the deceased P.W. 11 – Leenaben has not supported the case of the prosecution so far as offence of murder is concerned, it is for the accused, who was staying with them under one roof, to account for the fatal injuries caused to the deceased, that too, at 2:30 a.m. , which is especially within his knowledge. She has further submitted that not only the aforesaid circumstances, there are three witnesses to whom P.W. 11 – Leenaben divulged the facts of the incident and the author of the crime, which they have deposed to before the Court being P.W. 2 – Fulchandbhai Manilal Shah, P.W. 3 – Sakriben Mangaldas and P.W. 4 – Sumatibhai Fulchandbhai. She has further submitted that even the accused had made extra judicial confession before two of the witnesses, being P.W. 5 – Rameshkumar Manilal Saini and P.W. 6 – P.S.I. Dayabhai Dudhabhai, and therefore, according to her submission, there is a foolproof case against the respondent – accused and there is no view other than the view that the accused himself has committed an offence of murder of deceased Shweta, who failed to account for the fatal injuries over the deceased and the death of the deceased, which was especially within his knowledge. 4.1 She has further submitted that there is no dispute with regard to staying on rent in the house of P.W. 2 – Fulchand Manilal Shah. 4.1 She has further submitted that there is no dispute with regard to staying on rent in the house of P.W. 2 – Fulchand Manilal Shah. Not only that, they purchased mattresses as also bed sheets from Khadi Gram Udhyog, bills for which was found from the rented premises and panchnama thereof is admitted by the learned advocate on behalf of the respondent - accused. Not only that, the bills in the name of the accused – Sanjaykumar for the purchase of two mattresses as also bed sheets is deposed to by P.W. 9 – Laxmanji Jivanji Gohil, who was cashier in Khadi Gram Udhyog shop. 4.2 She has relied on a decision in the case of State of Himachal Pradesh Vs. Raj Kumar reported in (2018) 2 SCC 69 , more particularly paragraph 17 thereof for a proposition that failure of accused to explain incriminating circumstances against him would lead to a conclusion that none else but the accused has committed the crime. 4.3 Hence, it is requested that this Appeal be allowed and the respondent – accused be suitably punished and sentenced. 5. As against that, Mr. Mrudul Barot, learned advocate for the respondent – accused vehemently submitted that since the case rests on circumstantial evidence, first and foremost circumstance in chain of events may be the motive for causing the death of the deceased. He has submitted that the prosecution has miserably failed to prove any motive that can be attributed to the respondent – accused for the death of the deceased. He has further submitted that the prosecution though, pleaded motive, has not led any evidence in support thereof. Therefore, if motive, pleaded, is not established, it would be a missing link in the chain of events to convict the accused, that too, for an offence under Section 302 of the ‘IPC’. He has further submitted that the evidence of the landlord of the accused, his wife and son giving account for authorship of the injuries caused to the deceased derived knowledge from P.W. 11 – Leenaben. Their deposition and evidence can be treated as a hearsay evidence, and therefore, when P.W. 11 – Leenaben has not deposed to before the Court about divulging any such information to those witnesses and she declared hostile, it cannot be termed as an evidence in the form of even hearsay evidence. Their deposition and evidence can be treated as a hearsay evidence, and therefore, when P.W. 11 – Leenaben has not deposed to before the Court about divulging any such information to those witnesses and she declared hostile, it cannot be termed as an evidence in the form of even hearsay evidence. The person from whom those witnesses derived knowledge about the incident and the authorship of the crime has not said anything. Their claim cannot be accepted by the Court even if it is true and it would become hearsay evidence, if at all it is believed. Even otherwise, hearsay evidence is very weak in nature so as to conclude the guilt of an accused. In these two circumstances, which are not proved by the prosecution, there is a major missing link in the chain of events to reverse the well reasoned order of acquittal passed in favour of the accused and convict him based on such circumstantial evidence. 5.1 He has further submitted that the so called extra judicial confession made before two of the witnesses i.e. one Rameshkumar Manilal Saini – P.W. 5 and P.S.I. Dayabhai Dudabhai – P.W. 6 are concerned, though it speaks about extra judicial confession made by the accused, their evidence cannot be relied on for the reasons: (1) P.W. 6 – P.S.I. Dayabhai Dudabhai was, at the time when the so called extra judicial confession made, working as P.S.I. at the local Police Station and any confession made before Police by the accused cannot be proved before the Court of law. (2) At the same time, it would be too much to accept the case pleaded by P.W. 5 – Rameshkumar Manilal Saini, who is not even remotely known to the accused before whom he can make such extra judicial confession. It is very strange that someone may admit all his guilt, that too, of murder before any unknown person. At any rate, according to the submission of the learned advocate for the respondent - accused, the respondent – accused made extra judicial confession in itself is a very weak piece of evidence based on which no accused can be convicted. It is very strange that someone may admit all his guilt, that too, of murder before any unknown person. At any rate, according to the submission of the learned advocate for the respondent - accused, the respondent – accused made extra judicial confession in itself is a very weak piece of evidence based on which no accused can be convicted. 5.2 He has further submitted that burden of proof thrown upon the respondent – accused by the learned Additional Public Prosecutor in view of Section 106 of the Indian Evidence Act would arise only and only after the prosecution has proved beyond reasonable doubt even prima facie case against him. Since the prosecution has failed to prove even prima facie case against the respondent – accused, he is not supposed to explain, as expected by the learned Prosecutor, the facts alleged to be especially within the knowledge. He has further submitted that the best evidence in the form of eye witness was available with the prosecution and examined by the prosecution being P.W. 11 – Leenaben, who had not supported the case of the prosecution. In absence of foolproof connecting chain of events pointing towards the guilt of the accused, he cannot be asked to explain under so called knowledge of facts especially within his own knowledge. He has further submitted that it is well established law that even if two views are possible in an acquittal Appeal, Court has to accept the view, which is in favour of the accused. Here, in the present case, according to the submission of the learned advocate for the respondent – accused, no view other than the view taken by the learned Judge acquitting the accused is possible, and therefore, it is submitted that innocence of the accused is strengthened by an order of acquittal. 5.3 In support of his submissions, Mr. Mrudul Barot, learned advocate for the respondent – accused has relied on a decision in the case of Sanjeev and Another Vs. State of Himachal Pradesh reported in (2022) 6 SCC 294 for a proposition that in an order of acquittal by the trial Court, the normal presumption of innocence in a criminal mater gets reinforced and if two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the Appeal against the acquittal. State of Himachal Pradesh reported in (2022) 6 SCC 294 for a proposition that in an order of acquittal by the trial Court, the normal presumption of innocence in a criminal mater gets reinforced and if two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the Appeal against the acquittal. 5.4 Another decision in the case of State of Punjab Vs. Kewal Krishan reported in AIR 2023 SC 3226 , more particularly, paragraph 22 thereof for a proposition that burden of proof under Section 106 of the Indian Evidence Act would shift on accused only when prosecution led evidence which, if believed, would sustain a conviction. Where no incriminating circumstances was proved and chain of circumstance was not complete, there was no occasion to place the burden on accused to prove his innocence. 5.5 Hence, he has submitted that this Appeal preferred by the State challenging the judgment and order of acquittal passed by the Sessions Judge is without any merit and requires to be dismissed. 6. Having heard the learned advocates for the appearing parties and going through the impugned judgment and order as also the Record and Proceedings of the this Court, including the deposition of witnesses, let us examine whether any interference of this Court, that too, in acquittal appeal is required in this case or not. We are conscious of the fact that in an acquittal Appeal, that too, based on circumstantial evidence unless and until there is a clinching evidence produced by the prosecution completing the entire chain of events, which led to only and only conclusion that none else but the accused has committed crime, we cannot interfere with the judgment and order of acquittal. We are further conscious of the fact that even if two views are possible, the view favourable to the accused is to be accepted, and therefore, there is no easy resort to interference in an order of acquittal passed by the trial Court. 6.1 Considering the evidence led before the Court, star witness of the prosecution is P.W. 11 – Leenaben. Leenaben is mother of the deceased – Shweta aged about 8 years. She alongwith her daughter stayed with the accused under one roof, that too, on rent in the premises of P.W. 2 – Fulchandbhai Manilal Shah. 6.1 Considering the evidence led before the Court, star witness of the prosecution is P.W. 11 – Leenaben. Leenaben is mother of the deceased – Shweta aged about 8 years. She alongwith her daughter stayed with the accused under one roof, that too, on rent in the premises of P.W. 2 – Fulchandbhai Manilal Shah. The alleged incident took place on 19.07.1993 at 2:30 a.m. in the midnight, and therefore, if any offence is committed causing murder of Shweta, only two persons would be having special knowledge about the incident and the cause for the death of the deceased. Leenaben, who is eye witness projected by the prosecution, had also received injuries over her face. So she is the injured eye witness, whose evidence cannot be brushed aside lightly. However, unfortunately, P.W. 11 – Leenaben has not supported the case of the prosecution on the material aspect of the incident of causing murder. Therefore, first hand information about the crime committed by the respondent – accused, though available with the prosecution, could not be brought on record by the said witness. 6.2 As such, in cases of direct evidence, absence of motive may not be that much material. However, motive is most material in cases of circumstantial evidence. Thus, some motive has to be there for commission of a crime and it may be one of the circumstance to prove the guilt of the accused in a case based on circumstantial evidence. When prosecution pleads or attributes motive to the accused, it is the duty of the prosecution to prove that motive on record. If prosecution pleads motive and fails to prove the same, it can be successfully concluded that there is an important missing link in the chain of circumstances and it would not be proper to convict the accused based on other evidence, if it is not inspiring any confidence. Here in this case, deceased Shweta was an obstruction to the relationship of the accused and P.W. 11 – Leenaben. Not only that, as per the case of the prosecution, the accused had threatened the deceased to kill and send her to house of God since she is obstruction to his relationship with her mother. However, that evidence to support that motive is missing in the case. Not only that, as per the case of the prosecution, the accused had threatened the deceased to kill and send her to house of God since she is obstruction to his relationship with her mother. However, that evidence to support that motive is missing in the case. Therefore, once motive is pleaded by the prosecution and is not able to prove the same, it can be concluded that there is a missing link in the chain of events. 6.3 Taking further the evidence of P.W. 11 – Leenaben though peripheral aspects mentioned in the FIR are deposed to before the Court, she has conveniently, for the reasons best known to her, has not given evidence against the accused despite she was the sole eye witness to the incident in a case of murder of her own daughter. On the contrary, her evidence gives arguable points to the accused as it has been brought on record by her cross examination on behalf of the accused that the deceased fell down when she was awake for passing urine while going towards bathroom repeatedly. She has gone to an extent that she also fell down in that very attempt to save her. However, deposition of hostile witness, that too, such theory pleaded by her in a cross examination cannot be considered as material evidence but fact remains that who is the author of the injuries found on the deceased, there is no evidence brought on record by the prosecution, if not by direct evidence, even by circumstantial evidence too. Though multiple injuries, 22 in numbers, may be simple injuries except one, cannot be caused by fall or slip, as pleaded through the evidence P.W. 11 – Leenaben. The theory of accidental slip on floor because of rain is also ruled out by the deposition of P.W. 2 – Fulchandbhai Manilal Shah landlord of the deceased. 6.4 Considering the circumstance with regard to extra judicial confession made by the accused before P.W. 5 – Rameshkumar Manilal Saini, who is unknown to the accused claiming to be serving in District Panchayat, he was at the crematorium as watchman of the crematorium was not available. Normally no person would make any confessional statement, may be extra judicial, if he is not knowing or having no thick relations with that person. No person would normally expected to make a confessional statement before unknown person. Normally no person would make any confessional statement, may be extra judicial, if he is not knowing or having no thick relations with that person. No person would normally expected to make a confessional statement before unknown person. Even that witness, P.W. 5 – Rameshkumar Manilal Saini was available at the crematorium by chance on that day, and therefore, even if it is presumed that accused made extra judicial confession before P.W. 5 – Rameshkumar Manilal Saini, is in itself is a very weak piece of evidence based on which alone if accused cannot be convicted, no order of acquittal can be reversed based on it. 6.5 So called extra judicial confession made before P.W. 6 - P.S.I. Dayabhai Dudhabhai can also not be relied on as witness was serving as P.S.I. at Palanpur city and on information supplied by P.W. 5 – Rameshkumar Manilal Saini about the so called extra judicial confession made by the accused, he went to the crematorium and before whom also he claims the accused has made extra judicial confession before him as well in detail. Though P.W. 5 – Rameshkumar Manilal Saini has not mentioned in his deposition how he knew P.W. 6 –P.S.I. Dayabhai Dudhabhai, the then P.S.I. in Palanpur city, P.W. 6 Dayabhai Dudhabhai has attempted to explain that he knows P.W. 5 Rameshkumar Manilal Saini by name as also by face. 6.6 In view of Section 25 of the Indian Evidence Act, no confession made to a Police Officer shall be proved as against a person, accused of any offence. P.W. 6 – Dayabhai Dudabhai was working as P.S.I. at that very Police Station and even if any extra judicial confession, as claimed by the witness, is made before him, it cannot be proved through that very witness, who was working as P.S.I.. Therefore, the learned Judge has rightly rejected the circumstance making extra judicial confession to P.W. 6 – Dayabhai Dudhabhai. At the same time, if deposition of P.W. 6 – Dayabhai Dudhabhai is considered, prior to he met the accused, P.W. 5 – Rameshkumar Manilal Saini informed him about the whole incident including the name of even the accused who was not known to both of them either by name or by face prior to the said incident. At the same time, if deposition of P.W. 6 – Dayabhai Dudhabhai is considered, prior to he met the accused, P.W. 5 – Rameshkumar Manilal Saini informed him about the whole incident including the name of even the accused who was not known to both of them either by name or by face prior to the said incident. 6.7 So far as purchase of mattresses and bed sheets are concerned, it proves only the fact that they hired on rent a house in premises of P.W. 2 – Fulchandbhai Manilal Shah for which there appears no dispute even by the defence, and therefore, nothing much turns on the witness P.W. 9 – Laxmanji Jivraji Gohil, who was then working as cashier in Khadi Gram Udhyog from where accused claimed to have purchased mattresses and bed sheets. Over and above that, in his statement recorded under Section 313 of the Code of Criminal Procedure, 1973, he has denied the purchase of the same. Whether that circumstance is proved or not, nothing much turns on the alleged incident and death of the deceased, as there is no dispute about the accused hiring the premises on rent of P.W. 2 – Fulchandbhai Manilal Shah as a tenant recently. Therefore, though injuries found on the dead body of the deceased were sufficient in ordinary course of nature for death, as opined by P.W. 1 – Jayantilal Dhulabhai Parmar and it being homicidal death, in absence of author of the injuries being identified by clinching evidence, that death being homicidal has nothing to do with the offence. 6.8 P.W. 10 – Rickshaw Driver – Imambhai is also examined by the prosecution, in whose rickshaw deceased Shweta alongwith the accused and Leenaben moved around the city before whom also the prosecution claims to have made extra judicial confession by the accused. However, he has also not supported the case of the prosecution. Though when Leenaben P.W. 11 joined as passenger in rickshaw, with the accused and her daughter, he pleaded ignorance in the examination-in-chief about anything abnormal happened either to the deceased Shweta or P.W. 11 Leenaben. Except he picking up accused alongwith his family and dropping at a particular place, he has not given any evidence, and therefore, his evidence is also not of any help to the prosecution. Except he picking up accused alongwith his family and dropping at a particular place, he has not given any evidence, and therefore, his evidence is also not of any help to the prosecution. 6.9 For discarding evidence of P.W. 5 – Rameshkumar Manilal Saini before whom an extra judicial confession is said to be made by the accused, the learned Judge has stated that witness P.W. 5 – Rameshkumar Manila Saini was neither knowing the deceased Shweta, Leenaben or the accused and by chance he was found in the crematorium as a replacement of the watchman, who was not available on that day and when P.W. 11 Leenaben mother of the deceased has not supported the case of the prosecution, claim made by the witness about extra judicial confession, which is very weak piece of evidence in absence of other material cannot be considered sufficient to prove the guilt of the accused. 6.10 P.W. 7 – Sureshbhai Harilal Kotak is examined by the prosecution to prove that the accused sought help from him to cremate the dead body of the deceased Shweta. Even if his evidence is to be believed that when he interacted with the accused, he was frightened and attempted to run away from there. The said evidence of the witness leads nowhere, that too, at least to be author of the crime for committing murder of the deceased Shweta. 7. After considering in detail evidence of each witnesses, learned Judge assigned good reasons for recording an order of acquittal. 7.1 The submission made by the learned Additional Public Prosecutor to invoke provisions of Section 106 of the Indian Evidence Act is of no help to the prosecution for the reasons that unless and until primary evidence about the guilt of the accused is produced and proved by the prosecution Section 106 of the Indian Evidence Act cannot be resorted to expecting the accused to explain the circumstances appearing against him on the facts especially within his knowledge. Reliance placed on in the case of Rajkumar (Supra)) is misplaced for the reasons that there was prima facie evidence available and proved by the prosecution pointing towards the guilt of the accused and thereafter on failure of the accused to explain incriminating circumstance against him, the Supreme Court in that case concluded in favour of the prosecution setting aside the judgment and order passed by the High Court affirming the order of conviction passed by the trial Court. However, in the present case, primary evidence in respect of guilt of the accused is not produced and proved by the prosecution, then accused cannot be expected to explain how deceased received injury on her and died. The initial burden to prove the case against the accused beyond reasonable doubt, is not fulfilled by the prosecution, and therefore, the accused cannot be called upon to explain the circumstances appearing against him. Therefore, it is no principal of law that straightway accused is to be called upon under Section 106 of the Indian Evidence Act to explain how and in what manner deceased, who was staying with him under one roof, received fatal injuries, which ultimately led to her death, more particularly, when there was an eye witness to the incident in the form of mother of the deceased, who unfortunately did not support the case of the prosecution. Therefore, we are unable to take a view other than the view taken by the learned Judge, who has arrived at a conclusion by a well reasoned judgment and order. Hence, we dismiss the present Appeal.