JUDGMENT : Ramesh Sinha, Chief Justice 1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 11.07.2019 passed by the Additional Judge to the Court of Additional Sessions Judge, Katghora, District Korba, in Sessions Trial No.63/2018, by which the appellant herein has been convicted for offence under Section 302 of the IPC (three times) and sentenced to undergo imprisonment for life (three times) and fine of Rs.500/- (three times), in default of payment of each fine, to further undergo RI for one month. 2. Case of the prosecution, in brief, is that on 21.05.2018 at about 6.30 A.M. informant Raj Kumar Yadav had lodged merg intimation (Exs.P-1 and P-2) to the effect that his nephew Kishan Yadav told him that the appellant committed murder of Tikautin Bai, Raj Kumari and also assaulted Chaitin Bai by wheel pana. Subsequently, during treatment injured Chaitin Bai also died. On the basis of merg intimation, FIR in Crime No.131/18 for offence under Section 302 and 307 of the IPC was registered against the appellant vide Ex.P-3. Spot map was prepared by the investigating officer vide Ex.P-4. Inquests over the bodies of the deceased Ramkumari Yadav and Tikaitin Bai were prepared vide Exs.P-7 and P-8. Bloodstained soil, plain soil and shawl were seized from the body of deceased Rajkumari Yadav vide Ex.P-9. Bloodstained soil, plain soil and shawl were also seized from the body of deceased Tikaitin Bai vide Ex.P-10. Bloodstained soil and plain soil were also seized from the spot where injured Chaiti Bai lying vide Ex.P-11. Patwari also prepared spot map vide Ex.P-13. Inquest was over the body of deceased Chaitibai was prepared vide Ex.P-15. Memorandum statement of the appellant was recorded vide Ex.P-16 and on the basis of his memorandum statement, wheel pana was seized from his possession vide Ex.P-17. Clothes of the appellant were seized vide Ex.P-18. The appellant was arrested on 24.05.2018 vide arrest memo Ex.P- 19. Injured Chaiti Bai was sent to the Community Health Center, Pali where Dr.Sourabh Gupta examined her vide Ex.P-22 and found following injuries:- i. Lacerated head injury on left parito occipital region (mid of) that is 2x2x1 cm in dimension. ii. Along with bone fracture on left parito occipital region (mid) of. Iii. Left side multiple ribs fracture on anterior aspect. iv. Right side multiple ribs facture on anterior aspect. ii. Along with bone fracture on left parito occipital region (mid) of. Iii. Left side multiple ribs fracture on anterior aspect. iv. Right side multiple ribs facture on anterior aspect. (as per examination report) The doctor has opined that all injuries are caused by hard & blunt object and are gravious in nature. After death, postmortem over the body of deceased Chaiti Bai was conducted by Dr.Sourabh Gupta (PW-13) vide Ex.P-23 and found following injuries:- 1. Lacerated head injury on mid of left parito occipital region that is 2x2x2 cm dimension along with. 2. Bone fracture on left parito occipital region (mid of). 3. Left 3rd, 4th, 5th ribs fracture at midclavicular line. 4. Right 5th, 6th, 7th ribs fracture also at midclavicular line.(as per PM report) The doctor opined that death occurred due to coma as a result of head injury. Death was homicidal in nature. Dead body of deceased Ramkumari was sent for postmortem to the Community Health Center, Pali where Dr.Sourabh Gupta (PW-13) conducted postmortem over the body of deceased Ramkumari vide Ex.P-30 and found following injuries:- 1. Lacerated wound present on forehead above left eye region 5x2x3cm. 2. Fracture Parietal & temporal bone with lacerated wound 10x4x4 cm. 3. Fracture left 4th, 5th vertebra. 4. Brain come out (grey and while matter). 5. 2-3 months foetus preserved. (as per PM report) The doctor opined that death occurred due to hemorrhagic shock as a result of head injury and death was homicidal in nature. Dead body of deceased Tikaitin Bai was sent for postmortem to the Community Health Center, Pali where Dr.Sourabh Gupta (PW-13) conducted postmortem over the body of deceased Tikaitin Bai vide Ex.P-31 and found following injuries:- 1. Fracture temporal, parietal & frontal bone, masseter skull. 2. Fracture mandible with lacerated wound 4x2x2 cm. 3. Fracture right eye socket with eye ball expel out bone. (as per PM report) The doctor has opined that death occurred due to hemorrhagic shock as a result of head injury and death was homicidal in nature. Statement of Kishan Kanhaiya Madhav Bhola was recorded under Section 164 CrPC vide Ex.P-53. Statement of Rupa Yadav was recorded under Section 164 CrPC vide Ex.P- 54. Statement of Raghubir Yadav was recorded under Section 164 CrPC vide Ex.P-55. Seized articles were sent to FSL vide Ex.P-56. Statement of Kishan Kanhaiya Madhav Bhola was recorded under Section 164 CrPC vide Ex.P-53. Statement of Rupa Yadav was recorded under Section 164 CrPC vide Ex.P- 54. Statement of Raghubir Yadav was recorded under Section 164 CrPC vide Ex.P-55. Seized articles were sent to FSL vide Ex.P-56. As per FSL report Ex.P-57, in Article A, C, G, I, J1, J2, J3, K1, K2, L human blood was found. 3. After completion of investigation, charge-sheet was filed before the Judicial Magistrate First Class, Pali, who in turn, committed the case to the Court of Sessions, Korba, from where the Additional Sessions Judge, Katghora received the case on transfer for trial. The accused/appellant abjured the guilt and entered into defence. 4. In order to bring home the offence, the prosecution examined as many as 15 witnesses and exhibited 58 documents Exs.P-1 to P-58. Statement of the accused/appellant was recorded under Section 313 of the CrPC in which he denied guilt. However, the appellant-accused examined none in his defence nor any document has been exhibited. 5. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 11.7.2019, convicted the appellant for offence under Section 302 of the IPC (three times) and sentenced as mentioned in opening paragraph of this judgment, against which, this criminal appeal has been preferred by the appellant herein. 6. Mr.Pranjal Agrawal, learned counsel for the appellant submits that the impugned judgment is contrary to law, facts and circumstances of the case, therefore, liable to be set aside. The learned trial Court ought to have seen the fact that the evidence produced by the prosecution is not sufficient to make out the case under Section 302 of the IPC. He further submits that the trial Court has wrongly based conviction upon the evidence of Raghubir Yadav (PW-4), though it has appeared from his evidence that he is a tutored witness and his evidence upon the incident is doubtful. He also submits that the learned trial Court has failed to appreciate that the prosecution failed to establish motive to bring home the conviction under Section 302 of the IPC and from the evidence on record, it is clear that there were major contradictions and omissions between the court statement and the case diary statement of the prosecution witnesses. He also submits that the learned trial Court has failed to appreciate that the prosecution failed to establish motive to bring home the conviction under Section 302 of the IPC and from the evidence on record, it is clear that there were major contradictions and omissions between the court statement and the case diary statement of the prosecution witnesses. As such, the appeal deserves to be allowed and the impugned judgment deserves to be set aside. He relies upon the judgment of the Supreme Court in the matter of Pradeep v. State of Haryana reported in AIR 2023 SC (Criminal) 1066. 7. On the other hand, Mr.Shrikant Kaushik, learned Panel Lawyer appearing for the respondent/State supports the impugned judgment and submits that dead bodies of deceased Tikaitin Bai, Ramkumari and Chaiti Bai were found lying in their house, therefore, provision of Section 106 of the Evidence Act is applicable and the appellant was required to explain as to under what circumstances three women died in the house where the appellant was also present. He further submits that appellant has failed to explain the death of the deceased and therefore, conviction of the appellant for offence under Section 302 of the IPC (three times) is well merited and the appeal deserves to be dismissed. 8. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection. 9. It is house murder and the appellant was required to offer explanation in his statement under Section 313 of the CrPC, which he has failed to offer. 10. 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.” 11. The law regarding under Section 106 of the Indian Evidence Act, 1872 is well settled. The unnatural death of Chaiti Bai, Ramkumari and Tikaitain Bai took place in their house where the appellant was also present and thereafter he ran away from the house. 12. As per the requirement of Section 106 of the Indian Evidence Act, the accused was required to give plausible and convincing explanation about the circumstances, in which, the deceased was found dead in their house. 12. As per the requirement of Section 106 of the Indian Evidence Act, the accused was required to give plausible and convincing explanation about the circumstances, in which, the deceased was found dead in their house. Where an offence like murder is committed inside the house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases. The burden would be of a comparatively lighter character. 13. In view of Section 106 of the Indian Evidence Act, 1872, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how crime was committed. The inmates of the house cannot keep away by simply keeping quite and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer any explanation. 14. In the matter of Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681 the Supreme Court whilst applying provisions of Section 106 of the Indian Evidence Act, observed in para 14 reads as under: “14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: (b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him." 15. On the interpretation of Section 106 of the Indian Evidence Act, 1872 in the matter of Shambhu Nath Mehra v. State of Ajmer reported in AIR 1956 SC 404 in paragraph 9 it was observed by the Supreme Court thus: "9. 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. The word "especially" stresses that. It means facts that are pre-eminently 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." 16. In the matter of State of West Bengal v. Mir Mohammad Omar and others reported in (2000) 8 SCC 382 , the Supreme Court Court has observed in paras 31 to 33 as under: “31. The prestine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The prestine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty. 32. In this case, when the prosecution succeeded in establishing the afore narrated circumstances, the Court has to presume the existence of certain facts. Presumption is a course recognized by the law for the court to rely on in conditions such as this. 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.” 17. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval in the matter of Nagendra Sah (supra) 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 the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference. 23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.” 18. The first question for consideration would be, whether death of deceased Chaiti Bai, Ramkumari and Tikaitin Bai was homicidal in nature, which the trial Court has recorded to be homicidal in nature based upon testimony of Dr.Sourabh Gupta (PW-13), who has conducted postmortem and submitted reports vide Exs.P-23, 30 and 31, in which he has clearly opined that the deaths were homicidal in nature. In view of medical evidence available on record, finding recorded by the trial Court that the deaths occurred due to hemorrhagic shock as a result of head injury and the deaths of the deceased were homicidal in nature is a binding based on evidence available on record. We hereby affirm the said finding. 19. The next question is that the appellant has been convicted on sole testimony of Raghubir Yadav (PW-4), son of deceased Ramkumri. His testimony has been questioned by the learned counsel for the appellant on the ground that sole testimony of child witness should not be relied upon to base conviction unless it is corroborated by other appropriate valid piece of evidence as he is tutored witness. 20. In order to answer the question, it would be appropriate to notice the provisions contained in Section 118 of the Evidence Act, which states as under:- “118. Who may testify.-All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.” 21. Who may testify.-All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.” 21. Before discussing the evidence of the child witness, it would be advantageous to refer to the law relating to child witness. Section 118 of the Evidence Act deals with the question of competency of persons to testify. Under this section, all persons are competent to testify, unless they are, in the opinion of the Court, (a) unable to understand the questions put to them, or (b) to give rational answers to those questions, owing to (I) tender years, (ii) extreme old age, (iii) disease of mind or body, or (iv) any other such cause. Even a lunatic, if he is capable of understanding the questions put to him and giving rational answers, is a competent witness. With respect to children, no precise age is fixed by law within which they are absolutely excluded from giving evidence on the presumption that they have not sufficient understanding. A child is not an incompetent witness by reason of its age. A child of tender years is not, by reason of its youth, as matter of law, disqualified as a witness. There is no precise age which determines the question of competency. According to Section 118 of the Evidence Act, a child of tender age is a competent witness if it appears that it can understand the questions put to it and give rational answers thereto. This section vests in the Court the discretion to decide whether an infant is or is not disqualified to be a witness by reason of understanding or lack of understanding. When a young child is a witness, the first step for the Judge or Magistrate to take is to satisfy himself that the child is the competent witness within the meaning of Section 118 of the Evidence Act and for this purpose, preliminary inquiry should be held. When a young child is a witness, the first step for the Judge or Magistrate to take is to satisfy himself that the child is the competent witness within the meaning of Section 118 of the Evidence Act and for this purpose, preliminary inquiry should be held. It is the duty of the Court to ascertain in the best way, which it can, whether from the extent of his intellectual capacity and understanding the child witness is able to give a rational account of what he has seen, heard or done at a particular occasion or in other words, the witness understands the duty of speaking truth or not. Competency of young children can be ascertained by putting a few questions to them in order to find out whether they are intelligent enough to understand what they had seen and afterwards inform the court thereof. The holding of a preliminary inquiry is merely a rule of prudence and is not a legal obligation upon the judge. It is desirable that after holding a preliminary inquiry, Judges and Magistrates maintain record incorporating opinion that the child understands the duty of speaking truth. Though no precise criteria for appraising the evidence of a child witness can be laid down, yet one broad test is whether there was possibility of any tutoring. If this test is found in positive, the Court will not, as a rule of prudence, convict the accused of a major offence on the basis of child evidence unless it is corroborated to material extent in material particulars, directly connecting the accused with the crime. At the same time, if otherwise the testimony of a child witness is not shown to be tainted with any such infirmities, it calls for due credence. A child in the innocent purity of its mind and unsophistication is more likely to come forth with version which is unbiased, unsoiled, natural and forthright. It is less prone to manipulation, motivation and spirit of vendetta. It can as well be spontaneous and inspiring, once the child is enabled to overcome the initial shock and awe, and ensured protection, security, compassion and given confidence to come out with what was seen. Further, some of the children are fairly intelligent, truthful and straight forward, and there is no reason to start with a presumption of untrustworthiness in the assessment of their evidence. Further, some of the children are fairly intelligent, truthful and straight forward, and there is no reason to start with a presumption of untrustworthiness in the assessment of their evidence. The merit of evidence has to be judged on the touchstone of its own inherent intrinsic worth. 22. In the matter of Panchhi v. State of UP reported in (1998) 7 SCC 177 the Supreme Court has held as under:- “.....It cannot be said that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.” 23. With regard to the testimony of child witness the Supreme Court in State of Karnataka v. Shantappa Madivalappa Galapuji & others reported in (2009) 12 SCC 731 had noticed the case law and held as under: “The Indian Evidence Act, 1872 does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease -- whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. {See Suryanarayana v. State of Karnataka (2001) 9 SCC 129 }. In Dattu Ramrao Sakhare v. State of Maharashtra [ (1997) 5 SCC 341 ] it was held as follows : (SCC p.343, para 5) :- “A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. {See Suryanarayana v. State of Karnataka (2001) 9 SCC 129 }. In Dattu Ramrao Sakhare v. State of Maharashtra [ (1997) 5 SCC 341 ] it was held as follows : (SCC p.343, para 5) :- “A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to given rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.” 24. The position of law relating to the evidence of a child witness has been dealt with also by the Supreme Court in Nivrutti Pandurang Kokate and others v. State of Maharashtra reported in 2008 (12) SCC 565 and Golla Yelugu Govindu v. State of Andhra Pradesh reported in 2008(4) SCALE 569 . In the case of State of U.P. Vs. Krishna Master & Others reported in (2010) 47 OCR (SC) 263 the Supreme Court also has gone a step ahead in observing that a child of tender age who has witnessed the gruesome murder of his parents is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time notwithstanding the gap of about ten years between the incident and recording his evidence. 25. Rabhubir Yadav (PW-4) is child eyewitness of the incident. He has stated in para 1 of his evidence that he knows Laxminarayan who was present in the Court. Tikaitin Bai is his sister. She also knows Ramkumari, she was his mother. He also knows Chaiti Bai. She was his maternal grandmother. Ramkumari and Chaiti Bai have died. 25. Rabhubir Yadav (PW-4) is child eyewitness of the incident. He has stated in para 1 of his evidence that he knows Laxminarayan who was present in the Court. Tikaitin Bai is his sister. She also knows Ramkumari, she was his mother. He also knows Chaiti Bai. She was his maternal grandmother. Ramkumari and Chaiti Bai have died. In para 2 of his evidence, he has stated that on the date of incident, he, his mother Ramkumari, his sister Tikaitin Bai, his maternal grandmother Chaitibai and his brother Kishan Kanhaiya Madhav Bhola were in the house, on that day, accused Laxminarayan came in a truck and stayed in his house. In para 3 he has stated that on the date of incident the accused present in the Court firstly assaulted his sister Tikaitin Bai, thereafter his mother Ramkumari and then his maternal grandmother Chaitibai by wheel pana. That day his leg was swollen and he was sleeping with his mother Ramkumari and was waking up while sleeping. He had seen accused Laxminarayan beating his mother and when accused Laxminarayan had looked at him, he had closed my eyes. In para 4 he has stated that after the incident accused Laxminarayan ran away from the house. Then he woke up his sister Rupa, who was sleeping separately in the house. Then his sister called his brother Kishan Kanhaiya Madhav Bhola. Then his brother took out his mother Ramkumari's mobile and called the ambulance. In para 6, he has stated that on the date of incident, his grandmother Chaitibai was sleeping in veranda and his sister Tikaitin Bai was sleeping inside the house. His sister Tikaitin Bai also died due to beating of the accused. 26. Kishan Kanhaiya Yadav (PW-5) has stated in para 2 of his evidence that he does not know the date of incident. The incident happened on the night of last year's summer time. At that time, he was sleeping in the house when his sister Rupa woke him up and told him that Chaiti Bai, Tikaitin Bai and Ramkumari were killed by accused Laxminarayan, then he woke up. After that, he saw injuries over the head of Chaitibai, Tikaitin Bai and Ramkumari and blood was oozing. In para 5 he has stated that on the date of incident, he, his sister Rupa, his brother Raghubir, his mother Ramkumari, Chaitibai and his sister Tikaitin Bai were at home. After that, he saw injuries over the head of Chaitibai, Tikaitin Bai and Ramkumari and blood was oozing. In para 5 he has stated that on the date of incident, he, his sister Rupa, his brother Raghubir, his mother Ramkumari, Chaitibai and his sister Tikaitin Bai were at home. Tikaitain Bai is the daugher of his father's second wife. Tikaitain Bai was married to accused Laxminarayan. Before the date of incident, the present accused Laxminarayan, who drives a truck, had come to their house in a truck and parked the truck on the side of the road. In para 6 he has stated that on the date of incident at 8 P.M. accused Laxminarayan and sister Tikaitin Bai were fighting over money. His sister Tikaitin Bai was telling accused Laxminarayan that he should give her money. Then he fell asleep. On the date of incident, his son Raghubir was unwell and his sister Tikaitin Bai had come to see them and was staying for a week. 27. The trial Court has recorded in para 40 of its judgment that it is clearly stated by Raghubir Yadav (PW-4), an eyewitness to the incident, that the accused had killed Tikaitin Bai, Ramkumari and Chaiti Bai by wheel pana and immediately after the incident, Kishan gave a supportive statement about the incident and wheel pana used in the incident being found at the spot of the accused and human blood being found in it shows beyond doubt that Tikaitin Bai, Ramkumari and Chaiti Bai were killed by accused Laxminarayan. In this case, there is evidence of the accused having some conversation at the time of the incident and all three women were killed by the accused by wheel pana, which definitely shows his intention to cause death. 28. As such, the judgment relied upon by the learned counsel for the appellant i.e. Pradeep (supra) is not helpful to him and is distinguishable to the facts of the present case as in the present case, Raghubir Yadav (PW-4) is a child eyewitness who has seen the appellant assaulting the deceased. 29. 28. As such, the judgment relied upon by the learned counsel for the appellant i.e. Pradeep (supra) is not helpful to him and is distinguishable to the facts of the present case as in the present case, Raghubir Yadav (PW-4) is a child eyewitness who has seen the appellant assaulting the deceased. 29. In the present case, three deceased were found dead in their house and at that time, only the appellant and the deceased were present in the house and as per the provision of Section 106 of the Evidence Act, the burden to prove that the appellant was not present in the house at the time of incident and he was present elsewhere is on the appellant, which he admittedly failed to prove in his statement under Section 313 of the CrPC. 30. Considering the evidence of child eyewitness Raghubir Yadav (PW-4) who has seen the appellant assaulting three deceased, evidence of Kishan Kanhaiya Yadav (PW-5), evidence of Dr.Sourabh Gupta (PW-13), taking into consideration that the burden of proving a plea specially set up by the appellant which may absolve him from criminal liability, certainly lies upon him and he has not offered any plausible explanation, further taking into consideration that the appellant was required to explain as to how the deceased suffered such injuries, as the dead bodies of the deceased were found lying in their house, which he has admittedly not explained in his statement under Section 313 of the CrPC, as per FSL report (Ex.P-57), human blood was found in Article “L” wheel pana seized from the appellant / accused and the material collected by the prosecution, we are of the considered opinion that the above chain of circumstances is complete and leads only to one conclusion that it was the accused/appellant who caused death of the deceased. The view taken by the learned trial Court that the appellant is the author of the crime is a pure finding of fact based on evidence available on record. We hereby affirm that finding. 31. In the result, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. The conviction and sentence as awarded by the trial court to the appellant is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed. 32. We hereby affirm that finding. 31. In the result, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. The conviction and sentence as awarded by the trial court to the appellant is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed. 32. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 33. The Registry is directed to transmit the certified copy of this judgment along with the record to the trial Court concerned for necessary information and compliance.