JUDGMENT : Sujit Narayan Prasad, J. 1. The instant appeal has been preferred under Section 374(2) read with 389(1) of the Code of Criminal Procedure against the Judgment of conviction and Order of sentence dated 25.07.2015, passed by learned Sessions Judge, Dhanbad, in Sessions Trial No.96 of 2013, whereby, the appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code and upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life for the offence under Section 302 of the Indian Penal Code and fine of Rs.20,000/- and in default of payment of fine, further S.I. for six months. 2. The prosecution case was instituted on the basis of fardbeyan of the informant, namely, Janeshwar Hembram, alleging therein that on the intervening night of 13/14.11.2012 the informant was sleeping in house when he heard the cry alarm of his sister, who was sleeping in another room with her husband Satya Charan Baski(accused/appellant), the present accused. When the informant along with other members of the family reached there, he found his sister Parwati Baski lying in pool of blood and the accused Satya Charan Baski was standing there with blood-stained axe. The accused was over-powered. On being confronted as to why he has committed murder of his wife. He stated that his wife used to go outside the house on the pretext to meet the call of nature in unwanted hours. He suspected that she was having an illicit affair with someone else due to which he has committed murder of his wife Parwati Baski. 3. On the basis of the aforesaid fardbeyan Nirsa P.S. Case No.313 of 2012 dated 14.11.2012 under Section 302 I.P.C. against the accused Satya Charan Baski was registered. 4. After investigation, police found the occurrence to be true and submitted charge-sheet on 28.01.2013 against the accused under sections 302 of the I.P.C. 5. The cognizance of the alleged offence was taken and the case was committed to the Court of Sessions on 31.01.2013. 6. On 23.03.2013, the charge under sections 302 I.P.C was framed against the accused, namely, Satya Charan Baski, to which he pleaded not guilty and claimed to be tried. 7. The cognizance of the alleged offence was taken and the case was committed to the Court of Sessions on 31.01.2013. 6. On 23.03.2013, the charge under sections 302 I.P.C was framed against the accused, namely, Satya Charan Baski, to which he pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution has examined 11 witnesses, namely, Sakodi as P.W. 1, Nunu Lal Hembram as P.W. 2, Janeshwar Hembram (informant and brother of deceased) as P.W. 3, Dr. Swapan Kr. Sarak as P.W. 4, Srimati Hembram as P.W. 5, Suklal Hembram as P.W. 6, Umesh Hembram as P.W. 7, Lagan Hembram as P.W. 8, Shiba Hembram as P.W. 9, Dilip Kol as P.W. 10 and Binod Kumar as P.W. 11. 8. The prosecution has also proved the signature of Nunulal Hembram on fardbeyan and inquest report (carbon copy) as Exts. 1 and 2, fardbeyan as Ext. 3, signature of Janeshwar Hembram on inquest report as Ext. 2/1, seizure list as Ext. 4, signature of Janeshwar Hembram on seizure list as Ext. 4/1, P.M report as Ext. 5, the entire inquest report of deceased as Ext. 6 and signature of P.W. 11 on formal F.I.R as Ext. 7. 9. The statement of the accused was recorded under section 313 of the Criminal Procedure Code wherein he has denied the evidence against him. No evidence was adduced by the defence. 10. The trial Court, after evaluating the evidence of prosecution witnesses found the charges levelled against the appellant proved. 11. Accordingly, the appellant has been found guilty under section 302 of IPC, as such convicted and sentenced vide impugned judgment of conviction and order of sentence dated 25.07.2015, which is the subject matter of instant appeal. 12. Mr. Arwind Kumar, learned counsel for the appellant, has taken the following grounds in assailing the impugned order of conviction: - (i) The axe which has been used in alleged commission of crime has not been sent for its scientific examination to the Forensic Science Laboratory has caused serious prejudice. (iii) The suggestion to the effect that the brother has killed his sister and only in order to save his life he has implicated the appellant who happens to be his brother-in-law, has not been taken into consideration. (iii) The suggestion to the effect that the brother has killed his sister and only in order to save his life he has implicated the appellant who happens to be his brother-in-law, has not been taken into consideration. (iv) The entire case is based upon the theory of last seen but the chain is not being completed and hence, the judgment of conviction is not sustainable in the eyes of law. (v) The vital witness, i.e., son, since has not been examined who, as per the prosecution version, was along with the mother and father (appellant) and hence serious prejudice has been caused since the son who was along with the mother and father in the room was the best person to disclose about the commission of crime. (vi) The motive as per the prosecution version is not concrete. 13. Learned counsel for the appellant, on the basis of these grounds, has submitted that the instant appeal may be allowed by quashing and setting aside the judgment of conviction. 14. Per contra, Mr. Vineet Kumar Vashistha, learned Special Public Prosecutor, appearing for the respondent State, has defended the impugned judgment of conviction on the following grounds :- (i) The non sending of the axe to the Forensic Science Laboratory or not taking the finger print over axe will not vitiate the prosecution version since it is a case based upon the testimony of the eye witnesses. (ii) There is no denial on the part of the appellant that he was not in the room along with his wife and hence, the onus is upon him to disprove the allegation, since, he was found to be in room along with the wife and son and no other person was present inside the room. (iii) The question of completion of chain will only be applicable if the case is based upon the principle of last seen or the circumstantial evidence, but if the entire evidence will be taken into consideration, the case is based upon the testimony of PW-1, PW-2 and PW-3 and all of them have seen the appellant fleeing away from the room along with the axe and when they entered inside the room then they found that the deceased was lying in the pool of blood. (iv) The learned trial court, after taking into consideration the aforesaid fact, has considered the case with the angle that the case is based upon the cogent evidence testimony of the witnesses and, as such, it is immaterial and irrelevant, as has been argued on behalf of the appellant that said axe having not been sent for its scientific examination to the Forensic Science Laboratory has caused serious prejudice. (v) The non-examination of son who was inside the room when alleged commission of crime was happened, has caused prejudice as one of the argument which has been made on behalf of the appellant will also not vitiate the entire prosecution version reason being that the circumstances which have been narrated by the PW-1, PW-2 and PW-3 that on hearing cry of the son of the deceased, who happens to be the grandson of PW-1 and PW-2, when they entered inside the room, they saw that the appellant was having blood stained axe in his hand and his wife, the deceased, was lying in the pool of blood and found to be dead. (vi) The suggestion which has been given by the appellant to the effect that it is PW-3 who has killed the deceased due to the reason that there was regular scuffle between wife and husband, the deceased and the appellant, and due to that PW-3 had assaulted the brother-in-law, has not been taken into consideration but in response thereto, the submission has been made that the said suggestion is totally irrelevant since it is not the case of the defence that the PW-3 was ever inside the room since no question has been put to that effect to PW-3 or PW-2 or PW-1. As such, the suggestion to the effect that PW-3 who has killed the deceased and only in order to make a defence so as to protect him, the appellant has been falsely implicated in the instant case is without any basis. (vii) So far as the non-availability of light and due to that reason there is no possibility of identification is concerned, as the ground has been taken on behalf of the appellant, is immaterial because the appellant was not an intruder, rather, he was the son-in-law and everybody was knowing him, hence, non-availability of light will not vitiate the entire prosecution version. (viii) So far as motive having said to be not concrete is concerned, it is also not so material that the entire prosecution version will vitiate, rather, motive is there if the testimony of PW-1, PW-2 and PW-3 will be taken into consideration together. Thus, it is incorrect to say on the part of the appellant that there is no motive. 15. Learned counsel for the State respondent, on the basis of the aforesaid grounds, has submitted that the impugned judgment suffers from no infirmity and needs no interference. 16. We have heard the learned counsel for the parties, considered the finding recorded by the learned trial court in the impugned judgment, gone across the testimony of the prosecution witnesses as well as the other documents available in the lower court records. 17. This Court is required to answer the following issues: - (i) Whether the judgment passed by the learned trial court convicting the appellant can be said to be justified? (ii) Whether on the basis of the testimony of the witnesses can it be said to be a case based on circumstantial evidence or it is based upon the testimony of the eye witnesses? 18. Both the issues since are interlinked, as such, are being considered together and being answered hereinafter. But before considering the aforesaid issues, the testimony of the witnesses are required to be referred herein which reads hereunder as: - PW-1 Sakodi is the mother of the deceased. She has deposed that about a year ago on the day of Kali Puja at about 12.00 mid night she was sleeping in her house when she heard the cry and alarm of the grand son and daughter, who were sleeping in another room with the accused. When she reached there, she found Parwati Baski (deceased) lying on the ground with injuries on her head and the accused Satya Charan Baski, was fleeing with axe. She caught hold of the accused with the help of her son and daughter-in-law. She has further deposed that the deceased died on the spot. In her cross- examination P.W 1 has stated that she has not seen the actual occurrence of assault but when the son of the deceased raised alarm then she knew about the occurrence. Further she testified that no lamp was burning in the house. PW-2 Nunu Lal Hembram is the father of the deceased. In her cross- examination P.W 1 has stated that she has not seen the actual occurrence of assault but when the son of the deceased raised alarm then she knew about the occurrence. Further she testified that no lamp was burning in the house. PW-2 Nunu Lal Hembram is the father of the deceased. He has deposed that about a year ago on the day of Kali Puja at about 01.00 a.m. mid night, he was at his house when he heard the cry and alarm of the daughter, who were sleeping in another room with the accused. When he reached there he found Parwati Baski was wriggling with injuries on her head. He saw that accused Satya Charan Baski was trying to flee away with axe. He has further deposed that he caught the accused with the help of his wife, son and dauther-in-law. He has further deposed that the deceased died on the spot. PW-2 has further deposed that the police was informed and on the fardbeyan of his son Janeshwar Hembram this case was instituted. He has identified the signature on the fardbeyan. He has signed and identified the signature on the inquest report which has been marked as Exhibit 2. The P.W 2 in his cross examination has stated that he has not seen the actual assault as made by the accused on my daughter. PW-3 Janeshwar Hembram is the informant. He has supported the case of the prosecution and stated that the occurrence took place on the 13th day of year 2012 at the time of Kali Puja. He was present in his house. The accused had assaulted his sister Parwati Baski by axe. On the alarm of the deceased, he went to their room and saw that accused was running with axe and deceased was lying injured on the ground. He further deposed that the accused was caught having axe with the help of his mother and the said axe having stain of blood. Further, he has stated that the deceased died on the spot. He has stated that the accused suspected that his wife was having affair with someone else. He has identified the signature on the fardbeyan which is exhibit 3. He has identified his signature on the inquest report, which is Exhibit 2/1. Further, he has stated that the deceased died on the spot. He has stated that the accused suspected that his wife was having affair with someone else. He has identified the signature on the fardbeyan which is exhibit 3. He has identified his signature on the inquest report, which is Exhibit 2/1. He has also identified his signature on the seizure list and of other witnesses which is Exhibit 4 series. In his cross examination he has stated that he did not see the accused actually assaulting the deceased and he has denied he has committed the murder of the deceased and falsely implicated the accused. He has further deposed that he had handed the said axe to the Sub-Inspector and same has been seized by the police and seizure list was prepared upon which he put his signature. PW-4 Dr Swapan Kumar Sara is the doctor who conducted the postmortem of the deceased and found the following external injuries: - I. Incised Wound: (a) 3” x ¼” x bone deep over bridge of nose to bright zygoma. (b) 2” x1/2” x bone deep over right temporal region obliquely. (c) 4'' x ½” x bone deep over right zygoma to auricle. (d) 2”x1/2” x bone deep obliquely over right angle of mandible. (e) 3”x1/4” x bone deep over left palm obliquely. (defence wound). (f) 3”x1/4” x bone deep over palmar aspect of first metacarpol of left hand (defence wound). All the above wound found having well defined clean cut even and bruise and irregular at places. II. Swelling with bruise over left frontal region of head. He has further stated that on Dissection: - Ecchymosis with blood clots found beneath scalp over frontal and right temporal region of head with clean and irregular fracture just beneath external injuries. Meninges found over frontal part of brain. Full and left empty. Stomach contained 200 cc of partially digested rice and pasty food. Bladder and uterus found empty and all other internal organs found pale. According to this witness, death was due to shock and hemorrhage as result of above-mentioned injuries. He has proved the postmortem report as Ext. 3. In his cross examination, he has stated that injuries may be caused by axe or kulhari. Bladder and uterus found empty and all other internal organs found pale. According to this witness, death was due to shock and hemorrhage as result of above-mentioned injuries. He has proved the postmortem report as Ext. 3. In his cross examination, he has stated that injuries may be caused by axe or kulhari. PW-5 Srimati Hembram and PW-6 Suklal Hembram both have stated that occurrence took place at the time of Kali Puja one and half years ago at about in the dead of night and they were sleeping in their house. On hulla, they went to the place of occurrence and saw that Satya Charan Baski was standing there with bloodstained axe. He was caught. Both these witnesses have stated that when confronted as to why he has murdered his wife, he stated that he suspected his wife to be having illicit affair, so he murdered her. Both these witnesses have identified the accused in the dock. In their cross examination, Srimati Hembram (P.W. 5) has stated that she did not know the actual cause of fight between the husband and wife. P.W 6 has stated his house was 10 steps away from the house of the informant. PW-7 Umesh Hembram, PW-8 Lagan Hembram and PW-9 Shiba Hembram all have stated almost on the same line. They stated that occurrence took place in the intervening night of 13/14th November, 2012. On hulla, they went to the house of Janeshwar Hembram. They saw that they had restrained Satya Charan Baski and crowd was gathered. PW-7 Umesh Hembram and PW-8 Lagan Hembram, both have stated that they saw the dead body of the deceased. She had sustained head injuries. They have also stated that when they asked the accused as to why he has committed murder of his wife, the accused told him that he suspected his wife to be having extra marital affairs that is why he has murdered his wife. These witnesses have identified the accused in the dock. PW-7 Umesh Hembram, in his cross-examination, has stated that he is not an eye witness of the occurrence. PW-10 Dilip Kol, has stated that about two and half years ago, he went to the house of Nunu Lal Hembram and saw the dead body of the deceased. Further he has stated that accused was apprehended and restrained there. PW-11 Binod Kumar is the I.O of the case. PW-10 Dilip Kol, has stated that about two and half years ago, he went to the house of Nunu Lal Hembram and saw the dead body of the deceased. Further he has stated that accused was apprehended and restrained there. PW-11 Binod Kumar is the I.O of the case. He has stated that on 14.11.12 he was posted as Officer-In-Charge of Nirsa Police Station. On receipt of information, he went to the place of occurrence and recorded the fardbeyan of Janeshwar hembram. He has stated that he has also prepared the inquest report, and proved it which is Exhibit 6. He has also stated that he has sent the dead body for post mortem. He has also stated that informant Janeshwar Hembram produced the axe which was used for murder of the deceased. Further, he stated that he has prepared the seizure list which is marked as Exhibit 4. Further he has also proved the place of occurrence which happens to be one room in the house of the informant. He has given the description of the place of occurrence along with its perimeter. He has further testified that he arrested the accused who had confessed his guilt. In his cross examination, he has stated that there was no eye witness of the occurrence. Further he testified that He had not sent the axe to the finger print expert in order to ascertain that who had used the said axe. 19. Learned counsel for the appellant has taken the main ground that it is a case of circumstantial evidence and, as such, the chain is to be complete before passing the judgment of conviction. 20. There is no quarrel with the settled position of law that in the case of circumstantial evidence the chain is to be complete then only there will be conviction of the concerned accused person, as has been laid down by the Hon'ble Apex Court in the case of Hanumant son of Govind Nargundlar vs. State of Madhya Pradesh, AIR 1952 SC 343 wherein it has been held that “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 21. The same view has been taken by the Hon'ble Apex Court in Bakhshish Singh vs. State of Punjab, (1971) 3 SCC 182 wherein the Hon'ble Apex Court has observed that the principle in a case resting on circumstantial evidence is well settled that the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. These circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 22. The Hon'ble Apex Court while laying down such proposition in the said case has considered the factual aspect revolving around therein and while considering the fact has only found the incriminating evidence against the appellant was his pointing the place where the dead body of the deceased had been thrown which the Hon'ble Apex Court has not considered to be circumstantial evidence though undoubtedly it raises a strong suspicion against the appellant. the Hon'ble Apex Court while coming to such conclusion has observed that even if he was not a party to the murder, the appellant could have come to know the place where the dead body of the deceased had been thrown. Hence anyone who saw those parts could have inferred that the dead body must have been thrown into the river near about that place. In that pretext, the law has been laid down at paragraph-9 thereof, which reads as under: “9. The law relating to circumstantial evidence has been stated by this Court in numerous decisions. Hence anyone who saw those parts could have inferred that the dead body must have been thrown into the river near about that place. In that pretext, the law has been laid down at paragraph-9 thereof, which reads as under: “9. The law relating to circumstantial evidence has been stated by this Court in numerous decisions. It is needless to refer to them as the law on the point is well-settled. In a case resting on circumstantial evidence, the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. Again those circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 23. It is, thus, evident from the close analysis of the aforesaid judgments the following conditions must be fulfilled before a case fulfilled before a case against an accused can be said to be fully established: (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (ii) 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, (iii) the circumstances should be of a conclusive nature and tendency, (iv) they should exclude every possible hypothesis except the one to be proved, and (v) 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 24. The Hon'ble Apex Court has reiterated the said principle again in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 holding all the above five principles to be the golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence. The Hon'ble Apex Court has reiterated the said principle again in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 holding all the above five principles to be the golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence. The Hon'ble Apex Court in the said case as under paragraph-155, 156, 157, 158 and 159 has been pleased to hold that if these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. Paragraphs-155, 156, 157, 158 and 159 of the said judgment read as under: “155. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in King v. Horry [1952 NZLR 111] thus: “Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.” 156. Lord Goddard slightly modified the expression “morally certain” by “such circumstances as render the commission of the crime certain”. 157. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry case [1952 NZLR 111] was approved by this Court in Anant Chintaman Lagu v. State of Bombay [ AIR 1960 SC 500 ] Lagu case [ AIR 1960 SC 500 ] as also the principles enunciated by this Court in Hanumant case [(1952) 2 SCC 71] have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases — Tufail case [ (1969) 3 SCC 198 ] , Ramgopal case [ (1972) 4 SCC 625 ] , Chandrakant Nyalchand Seth v. State of Bombay [ Criminal Appeal No 120 of 1957,], Dharambir Singh v. State of Punjab [ Criminal Appeal No 98 of 1958,]. There are a number of other cases where although Hanumant case [(1952) 2 SCC] has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration [(1974) 3 SCC 668, 670] , Mohan Lal Pangasa v. State of U.P. [ (1974) 4 SCC 607 ,] , Shankarlal Gyarasilal Dixit v. State of Maharashtra [ (1981) 2 SCC 35 , 39] and M.G. Agarwal v. State of Maharashtra [ AIR 1963 SC 200 : (1963) 2 SCR 405 ,] — a five-Judge Bench decision. 158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor General relying on a decision of this Court in Deonandan Mishra v. State of Bihar [ AIR 1955 SC 801 ] to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor-General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus: “But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation. such absence of explanation or false explanation would itself be an additional link which completes the chain.” 159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier viz. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier viz. before a false explanation can be used as additional link, the following essential conditions must be satisfied: (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation.” 25. The foremost requirement in the case of circumstantial evidence is that the chain is to be completed. 26. The Hon’ble Apex Court in the case of Laxman Prasad @ Laxman vs. The State of Madhya Pradesh in Criminal Appeal No. 821 of 2012 dated 14.06.2023 has held at paragraphs-3 & 4 as follows: “3. We do not find such conclusion of the High Court to be strictly in accordance with law. In a case of circumstantial evidence, the chain has to be complete in all respects so as to indicate the guilt of the accused and also exclude any other theory of the crime. The law is well settled on the above point. Reference may be had to the following cases: (i) Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 ; (ii) Sailendra Rajdev Pasvan vs. State of Gujarat Etc., AIR 2020 SC 180 4. Thus, if the High Court found one of the links to be missing and not proved in view of the settled law on the point, the conviction ought to have been interfered with.” 27. It is also correct that in a case of circumstantial evidence, the recovery of axe or the arms of substance utilized in the commission of crime of murder is having bearing before proving the guilt of the accused person. Likewise, the relevance to send the fingerprint to the Forensic Science Laboratory is also there in a case of circumstantial evidence to reach to the logical end regarding the commission of crime by the accused person which can only be gathered if the chain is complete as per the settled position of law. 28. Likewise, the relevance to send the fingerprint to the Forensic Science Laboratory is also there in a case of circumstantial evidence to reach to the logical end regarding the commission of crime by the accused person which can only be gathered if the chain is complete as per the settled position of law. 28. Law is equally settled that in the case of an eye witness, not sending the finger print or the arms/ammunitions/ substance used in the commission of crime to the Forensic Science Laboratory will not vitiate the prosecution version, rather, the testimony of the witness is to prevail. 29. Not sending the finger print or the weapon used in the commission of crime to the Forensic Science Laboratory may amount to the lapses in investigation but it can not be the ground to vitiate the entire prosecution story if the case is based upon the cogent evidence of ocular evidences. 30. The hon’ble Apex Court in the case of Dhanaj Singh v. State of Punjab, (2004) 3 SCC 654 has categorically observed that in the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer. Further it has been observed that when the direct testimony of the eyewitnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the IO cannot affect the credibility of the prosecution version. For ready reference the relevant paragraphs of the aforesaid judgment are being quoted herein under: “5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. [ (1995) 5 SCC 518 ). 6. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. [ (1995) 5 SCC 518 ). 6. In Paras Yadav v. State of Bihar [ (1999) 2 SCC 126 ] it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. 7. As was observed in Ram Bihari Yadav v. State of Bihar [ (1998) 4 SCC 517 ] if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice. The view was again reiterated in Amar Singh v. Balwinder Singh [ (2003) 2 SCC 518 : 2003 SCC (Cri) 641]. As noted in Amar Singh case [ (2003) 2 SCC 518 :] it would have been certainly better if the firearms were sent to the Forensic Test Laboratory for comparison. But the report of the ballistic expert would be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eyewitnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the IO cannot affect the credibility of the prosecution version. 8. The stand of the appellants relates essentially to acceptability of evidence. Even if the investigation is defective, in view of the legal principles set out above, that pales into insignificance when ocular testimony is found credible and cogent. Further effect of non-examination of weapons of assault or the pellets, etc. in the background of defective investigation has been considered in Amar Singh case [ (2003) 2 SCC 518 ]. In the case at hand, no crack in the evidence of the vital witnesses can be noticed.” 31. Further effect of non-examination of weapons of assault or the pellets, etc. in the background of defective investigation has been considered in Amar Singh case [ (2003) 2 SCC 518 ]. In the case at hand, no crack in the evidence of the vital witnesses can be noticed.” 31. Similarly in the case of Punjab v. Hakam Singh, (2005) 7 SCC 408 the hon’ble Apex Court has observed as under : “13. It was also pointed out by learned counsel for the respondent that no firearms were recovered and no seizure has been made of empties. It would have been better if this was done and it would have corroborated the prosecution story. Seizure of the firearms and recovering the empties and sending them for examination by the ballistic expert would have only corroborated the prosecution case but by not sending them to the ballistic expert in the present case is not fatal in view of the categorical testimony of PW 3 about the whole incident.” 32. Further it is pertinent to mention here that when alleged occurrence was taken place at that time appellant/ accused was inside the room with the deceased as such onus upon him to explain that in which the circumstances the murder of his wife was caused. 33. In this context the statutory provision as contained in Section 101 to 105 of the Evidence Act required to refer herein. It is stipulated in the aforesaid section that the burden of proving the charge is upon the prosecution and only in case the prosecution will be able to prove the case beyond all reasonable doubt, then only the judgment of conviction can be passed but the exception has been carved out under Section 106 of the Evidence Act whereby and whereunder it has been provided that there will be reverse onus upon the accused person to disprove what has been alleged. 34. In this context, it also requires to refer herein that onus to disprove the guilt lies on the accused persons in view of provision as contained under Section 106 of the Indian Evidence Act, 1972, which reads 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.” 35. In this context, the Hon’ble Apex Court in the judgment rendered in Joshinder Yadav Vs. – When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 35. In this context, the Hon’ble Apex Court in the judgment rendered in Joshinder Yadav Vs. State of Bihar reported in (2014) 4 SCC 42 held at paragraphs 16, 17, 18 considering the implication of the provision of Section 106 of the Evidence Act has held as under: “16. In our opinion, the prosecution having established that the accused treated the deceased with cruelty and that they subjected her to harassment for dowry, the accused ought to have disclosed the facts which were in their personal and special knowledge to disprove the prosecution case that they murdered Bindula Devi. Section 106 of the Evidence Act covers such a situation. The burden which had shifted to the accused was not discharged by them. In this connection, we may usefully refer to the judgment of this Court in [Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404 : 1956 Cri LJ 794] wherein this Court explained how Section 101 and Section 106 of the Evidence Act operate. Relevant portion of the said judgment reads thus : (AIR p. 406, paras 10-11) “10. Section 106 is an exception to Section 101. Section 101 lays down the general rule about the burden of proof. ‘101.Burden of proof.—Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.? Illustration (a) says— ‘A desires a court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.” This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 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.” 17. 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.” 17. In Balram Prasad Agrawal v. State of Bihar [ (1997) 9 SCC 338 ] the prosecution had established the cruel conduct of the accused i.e. her husband and members of his family and the sufferings undergone by the deceased at their hands. The unbearable conduct of the accused ultimately resulted in her death by drowning in the well in the courtyard of the accused's house. This Court observed that what happened on the fateful night and what led to the deceased's falling in the well was wholly within the personal and special knowledge of the accused. But they kept mum on this aspect. This Court observed that it is true that the burden is on the prosecution to prove the case beyond reasonable doubt. But once the prosecution is found to have shown that the accused were guilty of persistent conduct of cruelty qua the deceased spread over years as was well established from the unshaken testimony of father of the deceased, the facts which were in the personal knowledge of the accused who were present in the house on that fateful night could have been revealed by them to disprove the prosecution case. This Court observed that the accused had not discharged the burden which had shifted to them under Section 106 of the Evidence Act. While coming to this conclusion, this Court relied on Shambhu Nath Mehra [Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404 ]. 18. In the present case, the deceased was admittedly in the custody of the accused. She disappeared from their house. As to how her dead body was found in the river was within their special and personal knowledge. They could have revealed the facts to disprove the prosecution case that they had killed Bindula Devi. They failed to discharge the burden which had shifted to them under Section 106 of the Evidence Act. The prosecution is not expected to give the exact manner in which the deceased was killed. They could have revealed the facts to disprove the prosecution case that they had killed Bindula Devi. They failed to discharge the burden which had shifted to them under Section 106 of the Evidence Act. The prosecution is not expected to give the exact manner in which the deceased was killed. Adverse inference needs to be drawn against the accused as they failed to explain how the deceased was found dead in the river in one foot deep water.” 36. Further, reference, in this regard be made to the judgment rendered in Tulshiram Sahadu Suryawanshi & Anr Vs. State of Maharashtra reported in (2012) 10 SCC 373 at paragraph 22 held as under: “22. The evidence led in by the prosecution also shows that at the relevant point of time, the deceased was living with all the three accused. In other words, the appellants, their son A-3 and the deceased were the only occupants of the house and it was, therefore, incumbent on the appellants to have tendered some explanation in order to avoid any suspicion as to their guilt. All the factors referred above are undoubtedly circumstances which constitute a chain even stronger than the account of an eyewitness and, therefore, we are of the opinion that conviction of the appellants is fully justified.”. 37. The position of law as per the provision of Section 101 to Section 105 of the Evidence Act is very explicit wherein the burden will lie upon the prosecution to prove the charge beyond all shadow of doubt but in certain circumstances the onus will shift upon the accused to disprove the commission of crime. 38. This Court is now proceeding to examine as to whether the case is based upon the circumstantial evidence or it is based upon the testimony of the eye witness. 39. We have considered the testimony of PW-1 wherein it has been deposed that PW-1 was in separate room other than the room where the daughter and the son-in-law, the appellant, were there. It has further been deposed that after taking meal all were sleeping and at that moment the grandson has started crying by saying that mother has been killed. She has further deposed that her son-in-law, the appellant, was fleeing away with Tangi (axe) but he was caught hold of by her with the help of her son and daughter-in-law. 40. It has further been deposed that after taking meal all were sleeping and at that moment the grandson has started crying by saying that mother has been killed. She has further deposed that her son-in-law, the appellant, was fleeing away with Tangi (axe) but he was caught hold of by her with the help of her son and daughter-in-law. 40. PW-2 has also deposed in the similar manner. He has deposed that about a year ago on the day of Kali Puja at about 12.00 mid night he was sleeping in his house when he heard the cry and alarm of the grand son and daughter, who were sleeping in another room with the accused. When he reached there, he found Parwati Baski lying on the ground with injuries on her head and the accused Satya Charan Baski was trying to flee away with blood-stained axe. He has further deposed that he caught the accused with the help of his wife, son and dauther-in-law. He has further deposed that the deceased died on the spot. 41. PW-3 Janeshwar Hembram is the informant. He has deposed that the occurrence took place on the 13th day of year 2012 at the time of Kali Puja. He was present in his house. The accused attacked his sister Parwati Baski by axe. On the alarm of the deceased, he went to their room and saw that accused was running with blood-stained axe and deceased was lying injured on the ground. However, the accused was caught with the help of PW-1 and PW-2 and the axe was snatched from him. Further, he has stated that the deceased died on the spot. 42. Thus, it is evident from the testimony of PW-1, PW-2 and PW-3 together that the same cannot be said to be a case based upon the circumstantial evidence, rather, it is said to be based upon the testimony of the witnesses who had seen the appellant fleeing away from the room along with axe having mark of blood over there. 43. Further, due to the reason, as has been deposed by PW-1, PW-2 and PW-3 and the other witnesses, that in the aforesaid room along with the deceased the appellant was there with his son, as such, the reverse onus is upon the appellant to substantiate that how murder has taken place. 43. Further, due to the reason, as has been deposed by PW-1, PW-2 and PW-3 and the other witnesses, that in the aforesaid room along with the deceased the appellant was there with his son, as such, the reverse onus is upon the appellant to substantiate that how murder has taken place. It has not come anywhere by way of putting a question in the cross-examination that the appellant was not inside the room, rather, it is the admitted fact that the appellant was inside the room. 44. Further, the ground of committing murder by the PW-3 is also having no substance since the defence has failed to prove or raise the issue that along with the deceased and the appellant, the PW-3 was also inside the room, rather, it has come in the testimony that inside the room only the appellant along with the deceased and his son were there. 45. Therefore, if there is no question to that effect, rather, only suggestion is there that only in order to protect the PW-3 himself, he has casted allegation against the appellant, cannot be said to be relevant on the basis of the factual aspect reason being that if the appellant’s case would have been by way of defence that along with the appellant and his wife the PW-3 was also inside the room but it is not the fact of the case as would be evident from the testimony of the witnesses in their examination-in-chief and cross-examination. 46. This Court has also considered the factual aspect based upon the story as has been put by the defence by going through the statement recorded under Section 313 Cr.P.C. but no such defence has been taken, rather, whatever question has been put, the same has simply been denied. There is no defence statement either by taking the plea that his wife was murdered by his brother-in-law or he was not inside the room. 47. There is no defence statement either by taking the plea that his wife was murdered by his brother-in-law or he was not inside the room. 47. As such, even though the opportunity was there by way of recording the statement in defence under Section 313 Cr.P.C. which is a vital right of an accused person but there is no question to that effect and now all the pleas have been taken, i.e., axe having not been sent for its scientific examination to the Forensic Science Laboratory has caused serious prejudice, cannot be said to be proper at this stage when such defence has not been taken by the appellant. 48. So far as the issue of non-availability of light as one of the grounds has been taken which is not fit to be accepted for the reason that it is not that the appellant was intruder, rather, he happens to be the own son-in-law living in the matrimonial house itself. 49. So far as the issue of motive is concerned, it is evident from the testimony of PW-1, PW-2 and PW-3 that the appellant used to quarrel with the deceased as also used to take liquor which was being opposed by the deceased and hence, it is incorrect on the part of the appellant that motive is absent in this case. 50. This Court, in view of the aforesaid discussion, is of the view that there is the cogent evidences of the witnesses and, as such, not sending the axe to the Forensic Science Laboratory will not vitiate the prosecution version keeping the fact into consideration that the case is based upon the testimony of PW-1, PW-2 and PW-3 who all along have supported the prosecution version. 51. This Court, after considering the aforesaid fact, is of the considered view that it is not a case where the judgment of conviction requires interference because admittedly the death has occurred in the room where the appellant was present with the deceased and the aforesaid fact has all along been supported by the witnesses, namely, PW-1, PW-2 and PW-3. 52. This Court, after considering the aforesaid fact, is of the considered view that it is not a case where the judgment of conviction requires interference because admittedly the death has occurred in the room where the appellant was present with the deceased and the aforesaid fact has all along been supported by the witnesses, namely, PW-1, PW-2 and PW-3. 52. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction and Order of sentence dated 25.07.2015, passed by learned Sessions Judge, Dhanbad, in Sessions Trial No.96 of 2013, convicting and sentencing the appellant for the offence under Section 302 of the Indian Penal Code, which we hereby, affirm. 53. We do not find any merit in this appeal and the same is accordingly, dismissed. 54. Consequently, I.A. No.7128 of 2022 also stands dismissed. 55. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment. Pradeep Kumar Srivastava, J.- I agree