JUDGMENT : Goutam Bhaduri, J 1) The present appeal is against the judgment of conviction and order of sentence dated 13th February, 2020 passed by the Sessions Judge, Ambikapur, Distt. Surguja in Sessions Trial No.73/2019 whereby the appellant has been convicted for the offence punishable under section 302 IPC and sentenced to undergo R.I. for life and to pay a fine of Rs.500/- in absence of payment of fine to further undergo R.I. for six months. 2) According to the prosecution case, on 07.06.2019 the complainant Dilsai Manjhi (P.W.5) the brother of appellant appeared before the Police Chowki Kodma, Police Station Udaipur and got recorded merg information that on 06.06.2019 at about 11.15 p.m., his brother appellant woke him-up and stated that he has assaulted his wife with an Axe on her neck, thereby she has died. On a query being made, it was stated that the deceased-wife always used to quarrel for late-coming of her husband and she was reluctant to serve food. Being agitated, on such issue he has assaulted his wife. Thereafter on 07.06.2019 the complainant went to the spot and subsequently the merg was registered by Ex.P-12 and on the basis of that, the FIR came to be registered by Ex.P-13. The appellant was apprehended and on his disclosure the Axe used in commission of crime was recovered. Apart from that, the blood stained soil was recovered and the underwear was seized from the appellant. The dead body was subjected to postmortem and the Doctor found that the cause of death was due to profuse bleeding on account of injury inflicted on neck and chin and it was reported that the death was homicidal in nature. Subsequently, the Saree of the deceased was seized and sent for FSL examination. Apart from that, the Axe and underwear were also seized from accused and sent to FSL and on these articles presence of human blood was found. As per the FSL report, the underwear of the appellant and the Saree of the deceased and Axe which contain blood stains were having B blood group. 3) During the trial the appellant abjured the guilt and claimed to be tried. The prosecution examined as many as 11 witnesses and exhibited 23 documents. As per the FSL report, the underwear of the appellant and the Saree of the deceased and Axe which contain blood stains were having B blood group. 3) During the trial the appellant abjured the guilt and claimed to be tried. The prosecution examined as many as 11 witnesses and exhibited 23 documents. Since there was no plausible explanation offered by the appellant-husband for commission of murder as the incident happened in the house of the appellant itself, the trial Court after evaluating the facts and evidence, convicted the accused as aforesaid. Hence this appeal. 4) Learned counsel for the appellant would submit that there is no clinching evidence to connect the accused with the crime in question. He would submit that only on presumption, the appellant has been convicted. It is stated that there is no eye witness to the incident and the statement of the brother P.W.5 to whom the alleged disclosure was made about commission of crime, would show that he has not supported the case of prosecution before the Court. He submits that one of the witnesses to the memorandum and seizure i.e., P.W.3 was examined and though he admitted the signature but it has also been stated that the signatures were obtained on the blank paper. Consequently no credence can be given to such memorandum and seizure. He would submit that the plausible explanation which was given to the accused that the wife of the accused fell down in intoxicated state of mind thereby she sustained the injury and the appellant was not the author of the crime. Therefore, the impugned judgment of conviction and order of sentence be set aside and the appellant be released from jail. 5) On the other hand, learned State Counsel would submit that the appellant was rightly convicted and sentenced by the trial Court which cannot be faulted inasmuch as the accused has failed to explain as to how the dead body was in his house that too with severe injuries which could not have been happened due to mere fall at the door steps. He submits that P.W.3 has completely supported the memorandum and seizure which further stood firm by FSL report as the Saree of the deceased and the underwear of the accused were found having the same blood group apart from the fact that the Axe used for commission of crime was also having B blood group. Under the circumstances, the judgment of conviction and order of sentence passed by the learned Sessions Court do not call for any interference. 6) We have heard learned counsel for the parties. The place of incident according to Ex.P-4 is the house of the appellant. A perusal of Ex.P-4 would show that the incident occurred inside the house. The date and time of incident is 06.06.2019 at about 11 p.m., in the night. According to the prosecution, the appellant assaulted his wife deceased Merajo by way of Axe over a trivial dispute. Witness P.W.5, the brother, though initially in the merg statement (Ex.P-12) and FIR (Ex. P-13) has stated that his brother has disclosed that he assaulted his wife by way of Axe and thereby she died, however, he has not supported the case of prosecution before the Court. 7) The statement of P.W.6 Kunti who is wife of Dilsai (P.W.5), the brother of deceased would show that her husband (P.W.5) told her about the disclosure made to him (P.W.5) by his brother (accused) that the accused had assaulted and killed his wife. The incident happened inside the house of accused at 11 p.m. and not in an open place. Naturally, there may not be any eye-witness to the incident but the fact remains that when the place of incident is inside the house of accused which is not in dispute, the accused was the best person to disclose the fact as to how it happened. Since the reasonable inference has been established by the prosecution, therefore, taking into consideration the nature of inter-se relation between the accused and deceased and the place of incident, section 106 of the Indian Evidence Act would be applicable which envisages that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Therefore, in the present case, the burden would lie on accused to prove that how his wife was killed. 8) P.W.8 Dr. Therefore, in the present case, the burden would lie on accused to prove that how his wife was killed. 8) P.W.8 Dr. B.M. Kamre has stated that during postmortem examination, he found the following injuries : i. A cut wound on the left side of the neck admeasuring 6 x 3 cm. ii. two cut wounds on the left chin, one in size of 6 x 4 cm and the other is 6 x 3 cm The nature of injury would show that the cut injuries were found on the neck and the chin in size of 6 x 4 and 6 x 3 cm. On internal examination, the Doctor found that the bone of the left side of the jaw was found to be broken. According to the Doctor, the deceased died due to shock and coma caused by excessive bleeding from the injury inflicted on her neck, the death was homicidal in nature and its duration was within 12 to 14 hours before postmortem. With reference to query made by the police whether the deceased died due to assault made by the Axe used in commission of crime, the doctor replied that the assault with the said Axe could have resulted in death of deceased. The query report was given by the Doctor vide Ex.P-19A. 9) The accused stated that the deceased sustained injury by fall at the door steps but the fact as to how such severe injury will occur by falling on door steps, has not been explained. Therefore, Section 106 of the Evidence Act would be applicable to the instant case and the burden of proof is on the accused. 10) In Shambhu Nath Mehra v. The State of Ajmer AIR 1956 SC 404 , their Lordships of Supreme Court have held that the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution, to establish facts which are “especially, within the knowledge of the accused and which he could prove without difficulty or inconvenience. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution, to establish facts which are “especially, within the knowledge of the accused and which he could prove without difficulty or inconvenience. The Supreme Court while considering the word “especially” employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J., observed as under :- “11. … The word “especially” stresses that it means facts that are preeminently or exceptionally within his knowledge. If the sections were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23)(A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B). Their Lordships further held that Section 106 of the Evidence Act cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts. 11) The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar (2021) 10 SCC 725 in which it has been held by their Lordships of the Supreme Court as under :- “22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of the said other facts, the court can always drawn an appropriate inference. 23. When the accused fails to offer proper explanation about the existence of the said other facts, the court can always drawn 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.” 12) Similarly, the Supreme Court in the matter of Gurucharan Singh v. State of Punjab AIR 1956 SC 460 while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. 13) Now coming to the postmortem report, the doctor opined that it was homicidal in nature and after the accused was arrested, the memorandum was drawn on Ex.P-5. The memorandum witness is P.W.3. On the basis of memorandum, the weapon used in commission of crime i.e., Axe was seized by Ex.P-6. The seizure and memorandum have been supported by P.W.3. 13) Now coming to the postmortem report, the doctor opined that it was homicidal in nature and after the accused was arrested, the memorandum was drawn on Ex.P-5. The memorandum witness is P.W.3. On the basis of memorandum, the weapon used in commission of crime i.e., Axe was seized by Ex.P-6. The seizure and memorandum have been supported by P.W.3. There is no plausible explanation given by the accused to disbelieve the memorandum and seizure except the fact that at the fag end of statement, he signed certain papers but he conformed the memorandum were drawn in his presence and the seizure was made in his presence. The statement of P.W.3 would further show that the underwear (Cheddi) was also recovered by Ex.P-7 and from the spot , the blood stained soil was recovered by Ex.P-17. After the weapon was recovered it was sent for query and the Ex.P-19 was proved by Dr. B. M. Kamre (P.W.8), who gave the opinion that the injury could have been caused by the said Axe (Tangi). After the dead body was subjected to postmortem, the Saree which the deceased wore was was also seized by Ex.P-17. The said seized articles i.e., Axe, the blood stained soil from the spot, the Axe, underwear and Saree & the blouse were sent for FSL. The FSL report is Ex.P-22. A perusal of the FSL report would show that on the Axe marked as C, underwear marked as D and Saree of the deceased marked as E were having B blood group whereas the blood stained soil was having human blood. 14) The statement of accused u/s 313 CrPC would show that there is no explanation as to how the same blood group was found in the underwear, on the Axe and the Saree of the deceased. Therefore, the circumstances which prevailed against the accused were not explained. 15) The learned trial Court has convicted the accused appellants u/s 302 of IPC. Therefore, in reference to the conviction, it would be apt to quote sections 299 & 300 IPC which demonstrate culpable homicide and murder. It reads as under: 299. Culpable homicide. Therefore, the circumstances which prevailed against the accused were not explained. 15) The learned trial Court has convicted the accused appellants u/s 302 of IPC. Therefore, in reference to the conviction, it would be apt to quote sections 299 & 300 IPC which demonstrate culpable homicide and murder. It reads as under: 299. Culpable homicide. - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offences of culpable homicide. 300. Murder. - Except in the case hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or – Secondly, - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or – Thirdly, - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or – Fourthly, - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception -1.- When culpable homicide is not murder. - Culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death by the person who gave the provocation or causes the death of any other person by mistake or accident. The above exceptions are subject to the following provisions : Firstly, - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly. - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly. Secondly. - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly. - That the provocation is not given by anything done in the lawful exercise of the right of private defence.” 16) A plain reading of section 299 of IPC will show that it contains three clauses. In two clauses, it is the intention of the offender which is relevant and is the dominant factor and the third clause, the knowledge of the offender is relevant and is dominant factor. Analysing Section 299 as aforesaid, it becomes clear that a person commits culpable homicide if the act by which the death is caused is done - (i) with the intention of causing death; or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) With the knowledge that the act is likely to cause death.” 17) If the offence is such which is covered by any one of the clauses enumerated above, but does not fall within the ambit of clauses Firstly to Fourthly of Section 300 IPC, it will not amount to murder and the offender would not be liable to be convicted under Section 302 IPC. In such a case, if the offence is such which is covered by clause (i) or (ii) mentioned above, the offender would be liable to be convicted under Section 304 Part-1 IPC as it used the expression “if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death : where intention is the dominant factor. However, if the offence is such which is covered by Clause (iii) mentioned above, the offender would be liable to be convicted under Section 304 Part 2 IPC because of the use of expression “if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or cause such bodily injury as is likely to case death : where knowledge is the dominant factor. 18) In the instant case, the evidence on record would show that as per the statement of P.W.5 on a trivial issue, when the wife got annoyed about the late coming of husband and for not serving the food properly, husband got furious and lost his control of mind and in a sudden provocation inflicted the axe blow on the left side of her neck and chin. Therefore, the motive as projected in this case is difficult to be culled out. Thus the nature of evidence which has come on record would show that it is only a case of knowledge and not the intention to cause murder and bodily injury, therefore, the same would be a case of Section 304 Part II IPC. 19) Consequently, in the back ground of facts and the nature of evidence which has come on record, we are inclined to set aside the conviction and sentence u/s 302 IPC. Accordingly, the conviction and sentence imposed on the appellant u/s 302 of IPC is hereby set aside and instead, appellant is convicted u/s 304 Part II of IPC and is sentenced to undergo R.I., for 7 years. The fine amount and default sentence imposed by the trial Court shall remain unchanged. Accordingly, the appeal is partly allowed.