JUDGMENT : Sanjay K. Agrawal, J. 1. Invoking criminal appellate jurisdiction of this Court under Section 374(2) of the Code of Criminal Procedure (in short ‘CrPC’), the present criminal appeal has been preferred by the appellant herein calling in question the legality, validity and correctness of the judgment & order dated 18.1.2018 passed by learned Sessions Judge, Jashpur (in short ‘Trial Court’) in Sessions Case No.39/2017, by which the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code (in short ‘IPC’) and sentenced thereunder to suffer Life Imprisonment with fine of Rs.1000/- and in default of payment of fine amount, to suffer additional Rigorous Imprisonment for Three months. Factual matrix of the case, in brief: 2. On 3.4.2017 at 11:00 am, Bindeshwar Ram (PW-9), brother of deceased Vimitra Bai, lodged FIR (Exhibit P-17) at Police Outpost Bagicha stating that the appellant used to suspect on the character of Vimitra Bai and also used to beat her after consuming alcohol. He further alleged that on 2.4.2017 in the night at about 10:30 pm, the appellant assaulted Vimitra Bai with wooden stick and in the same night itself, the appellant went to the house of Sarpanch Heera Lal Pradhan (PW-1) and informed him that he in a drunken state has beaten his wife Vimitra Bai with wooden stick on account of which she was not speaking and not drinking water. Sarpanch Heeralal Pradhan (PW-1) and Vijay Shankar (PW-2) then immediately reached to the appellant’s house where they found Vimitra Bai lying dead in injured condition. 3. Subsequently, Merg Intimation was registered vide Exhibit P-18. Vide Exhibit P-1, summons were issued to the panch witnesses under Section 175 of CrPC and Panchnama was prepared vide Exhibit P-7. Spot Map of the place of incident was prepared vide Exhibit P-20 and Nazri Naksha was prepared by Patwari M.K. Nishad (PW-4) vide Exhibit P-6. Inquest report was conducted vide Exhibit P-2 and the dead-body of deceased Vimitra Bai was subjected to post-mortem which was conducted by Dr. J.R. Bhagat (PW-3) vide Exhibit P-8 in which cause of her death was opined to be cerebral injuries due to hematoma and the nature of death to be homicidal. Vide Exhibit P-16, blouse of deceased Vimitra Bai was seized from the Community Health Centre, Bagicha after her post-mortem examination. J.R. Bhagat (PW-3) vide Exhibit P-8 in which cause of her death was opined to be cerebral injuries due to hematoma and the nature of death to be homicidal. Vide Exhibit P-16, blouse of deceased Vimitra Bai was seized from the Community Health Centre, Bagicha after her post-mortem examination. Arrest of the appellant was made vide Exhibit P-21, Vide Exhibit P-3, a wooden stick stained with blood on its leading side was seized at the instance of the appellant. Vide Exhibit P-4, bloodsoaked as well as plain soil were seized from the place of incident. Similarly, a T-shirt and a saree both stained with blood were also seized at the instance of the appellant. Vide Exhibit P-3, Dr. J.R. Bhagat (PW-3) gave his query report on the seized wooden stick that injuries suffered by deceased Vimitra Bai could be caused by the said wooden stick and advised for chemical examination for the blood like stains found on the stick. Vide FSL report (Exhibit P-25), after chemical examination of the seized articles, human blood was found on the wooden stick (A) seized at the instance of the appellant, blouse (B) of deceased Vimitra Bai, soil (C) seized from the spot, T-shirt (E) of the appellant and saree (F) of deceased Vimitra Bai. 4. After completion of the investigation, the appellant was charge-sheeted before the concerned Magistrate Court from where the matter, being triable by the Sessions Court, committed to the Trial Court where charge was framed against the appellant for the offence punishable under Section 302 of IPC which was read out and explained to the appellant who abjured his guilt, took a plea of false implication and entreated for trial. 5. During the course of trial, in order to bring home the offence, the prosecution examined as many as 9 witnesses as PW-1 to PW-9 and exhibited 27 documents vide Exhibits P-1 to P-27. Statement of the accused appellant was recorded under Section 313 of CrPC, in which he denied the circumstances appearing against him in the evidence of the prosecution, pleaded innocence and false implication. However, in defence, neither any witness has been examined nor any document has been relied upon. 6. Statement of the accused appellant was recorded under Section 313 of CrPC, in which he denied the circumstances appearing against him in the evidence of the prosecution, pleaded innocence and false implication. However, in defence, neither any witness has been examined nor any document has been relied upon. 6. After conclusion of the trial, the Trial Court, by impugned judgment & order dated 18.1.2018, on appreciation of oral and documentary evidence available on record, found the appellant guilty of the offence punishable under Section 302 of IPC and accordingly convicted and sentenced him to undergo Life Imprisonment and fine of Rs.1000/- with default stipulation, which led to filing of the present appeal by the appellant. Submissions of learned Counsel for parties: 7. Mr. A.L. Singroul, learned counsel appearing for the appellant, would submit that only on the basis of invoking Section 106 of the Indian Evidence Act, 1872 (in short ‘Evidence Act’), the appellant has been convicted for the offence in question which is per se not attracted. Further, the wooden stick was seized from the spot and not pursuant to the memorandum statement of the appellant and even though human blood has been found on the wooden stick but that would alone not be sufficient to implicate the appellant for the offence in question, more particularly when there is no other evidence available on record to implicate the appellant for the offence in question. The appellant as such is entitled for acquittal and the appeal deserves to be allowed. 8. Mr. H.A.P.S. Bhatia, learned Panel Lawyer appearing for the State, per contra, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the Trial Court has rightly found established the incriminating circumstances culled out in paragraph 8 of the impugned judgment and the finding of conviction arrived at by the Trial Court on that basis is absolutely justified. Therefore, the appellant is not entitled to be acquitted of the offence in question and the appeal is liable to be dismissed. Discussion and Legal Analysis: 9. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. 10. The first question for consideration, as to whether the death of deceased Vimitra Bai was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of Dr. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. 10. The first question for consideration, as to whether the death of deceased Vimitra Bai was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of Dr. J.R. Bhagat (PW-3) who has conducted the post-mortem examination of deceased Vimitra Bai and also proved the post-mortem report (Exhibit P-8) in which cause of her death has been opined to be cerebral injuries due to hematoma and the nature of her death to be homicidal, which, in our considered opinion, is correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the Trial Court, holding that the death of deceased Vimitra Bai was homicidal in nature. 11. Now, since the case of the prosecution is not based on direct evidence rather it is based on indirect or circumstantial evidence, the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence which have been propounded by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 would be profitable to notice herein under:- “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 , where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 12. The Trial Court, in paragraph 8 of the impugned judgment, has culled out the following incriminating circumstances on which conviction of the appellant has been found proved:- 1- e`rdk fofe+=k ckbZ dh e`R;q ekuoo/k Lo:i dh gS\ 2- e`rdk fofe+=k ckbZ pksaVxzLr gkyr esa vfHk;qDr ds ?kj ij e`r ik;h xbZ\ 3- e`rdk dh e`R;q ds le; e`rdk ,oa vfHk;qDr ds vykok ?kj ij vkSj dksbZ ugha Fkk\ 4- vfHk;qDr e`rdk ds laca/k esa lek/kkuizn Li"Vhdj.k nsus esa vlQy jgk gS fd e`rdk dh e`R;q fdl rjg mlds ?kj gqbZ vkSj bl izdkj /kkjk 106 Hkkjrh; lk{; vf/kfu;e ds varxZr vfHk;qDr ds fo:) mi/kkj.kk dh tk ldrh gS\ 5- e`rdk dh e`R;q vfHk;qDr ds vykok vU; fdlh ds }kjk dkfjr fd;s tkus dh dksbZ vk'kadk ugha gS\ 6- ?kVuk LFky ls cjken feV~Vh] vfHk;qDr ls cjken Vh 'kVZ] ?kVuk LFky ls cjken M.Ms lfgr e`rdk ds Cykmt rFkk lkM+h esa ekuo jDr ik;k x;k gS\ 13. Now, we will consider the correctness of the aforesaid incriminating circumstances culled out by the Trial Court, one by one. Incriminating Circumstance No.1:- 14. The first incriminating circumstance as to whether the death of deceased Vimitra Bai was homicidal, has already been answered by us in the preceding paragraph holding that the death of deceased Vimitra Bai was homicidal, in view of the statement of Dr. J.R. Bhagat (PW-3) who has conducted the post-mortem (Exhibit P-8) of deceased Vimitra Bai and therefore it need not be deliberated herein again. Incriminating Circumstances No.2 & 3:- 15. J.R. Bhagat (PW-3) who has conducted the post-mortem (Exhibit P-8) of deceased Vimitra Bai and therefore it need not be deliberated herein again. Incriminating Circumstances No.2 & 3:- 15. So far as the second and third incriminating circumstances that deceased Vimitra Bai was found dead in the house of the appellant in injured condition and that at the time of incident, except the appellant and his wife Vimitra Bai, none else was present at the house of the appellant, as per the testimony of PW-1 Heera Lal Pradhan, Sarpanch of the Village, on the date of incident at about 2:00 am in the night the appellant had come to his home and informed that his wife Vimitra Bai had fallen down in his house and she got injured and was not drinking water and she was required to be taken to the hospital. PW-1 Heera Lal Pradhan then had gone to the house appellant and found Vimitra Bai lying dead inside the house of the appellant and there was blood oozing out of her mouth. PW-1 Heera Lal Pradhan had also informed PW-2 Vijay Shankar regarding the said incident. PW-2 Vijay Shankar has also supported the testimony of PW-1 Heera Lal Pradhan and has stated in his statement that on being informed by PW-1 Heera Lal Pradhan on phone, he had also gone to the house of the appellant along him (PW-1) and found Vimitra Bai lying dead inside the house of the appellant. Thus, from the testimony of PW-1 Heera Lal Pradhan and PW-2 Vijay Shankar, the aforesaid two incriminating circumstances that Vimitra Bai was found dead in the house of the appellant in injured condition and apart from the appellant and deceased Vimitra Bai, no one else was present in the house of the appellant at the time of incident, both stand duly established. Incriminating Circumstances No.4 & 5:- 16. In order to convict the appellant for the offence in question, the Trial Court has invoked Section 106 of the Evidence Act holding that his wife Vimitra Bai was found dead in his house and he has failed to explain in his statement recorded under Section 313 of CrPC as to how and under what circumstances she died in his house. 17. At this stage, it would be appropriate to quote Section 106 of the Evidence Act, which states as under:- “106. 17. At this stage, it would be appropriate to quote Section 106 of the Evidence Act, which 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.” 18. The said provision states that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned. 19. Recently, in the matter of Balvir Singh v. State of Uttarakhand, 2023 SCC OnLine SC 1261, their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the Evidence Act, have held that Section 106 has to be applied in criminal cases with care and caution and held in paragraphs 41 to 48 as under:- “41. Thus, from the aforesaid decisions of this Court, it is evident that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106 of the Evidence Act. 42. Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. 42. Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden of the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused. 43. Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory. If in such a situation, the accused gives an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams: “All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence.” 44. In the language of Prof. Glanville Williams: “All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence.” 44. To recapitulate the foregoing : What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is therefore for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions. If the accused had a different intention that is a fact especially within his knowledge and which he must prove (see Professor Glanville Williams— Proof of Guilt, Ch. 7, page 127 and following) and the interesting discussion—para 527 negative averments and para 528— “require affirmative counter-evidence” at page 438 and foil, of Kenny's outlines of Criminal Law, 17th Edn. 1958. 45. But Section 106 has no application to cases where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happened to be present when it took place. 1958. 45. But Section 106 has no application to cases where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happened to be present when it took place. From the illustrations appended to the section, it is clear that an intention not apparent from the character and circumstances of the act must be established as especially within the knowledge of the person whose act is in question and the fact that a person found travelling without a ticket was possessed of a ticket at a stage prior in point of time to his being found without one, must be especially within the knowledge of the traveler himself: see Section 106 of the Indian Evidence Act, illustrations (a) and (b). 46. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence which if believed by the court would convince them of the accused's guilt beyond a reasonable doubt, the accused is in a position where he should go forward with counter-vailing evidence if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might have been rebutted. Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution (Wharton's Criminal Evidence, 12th Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution (Wharton's Criminal Evidence, 12th Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Leland v. State reported in 343 U.S. 790=96 L.Ed. 1302, Raffel v. U.S. reported in 271 U.S. 294=70 L.Ed. 1054. WHAT IS “PRIMA FACIE CASE” IN THE CONTEXT OF SECTION 106 OF THE EVIDENCE ACT? 47. The Latin expression prima facie means “at first sight”, “at first view", or "based on first impression". According, to Webster’s Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the charges against the defendant. If they cannot present prima facie evidence, or if an opposing party introduces contradictory evidence, the initial claim may be dismissed without any need for a response by other parties. 48. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding death.” 20. Reverting to the facts of the case, it is quite established that the death of deceased Vimitra Bai was homicidal and that on the date of incident, apart from the appellant and the deceased, none else was present in the house of the appellant and the appellant himself had gone to inform PW-1 Heera Lal Pradhan that his wife Vimitra Bai had fallen down in his house and got injured and she was needed to be escorted to the hospital, on which PW-1 Heera Lal Pradhan had also informed PW-2 Vijay Shankar and then they went to the house of the appellant and they found Vimitra Bai lying dead in injured condition inside the house of the appellant and no one else was present there. All the incriminating circumstances have been put to the appellant under Section 313 of CrPC to explain and state as to how and under what circumstances his wife Vimitra Bai was found dead in his house, which was clearly and solely within the special knowledge of the appellant, which the appellant failed to explain by answering any question raised in this regard, especially Q.No.16. Thus, the Trial Court is absolutely justified in invoking Section 106 of the Evidence Act to hold that it is none other than the appellant who is guilty of the offence in question. Incriminating Circumstance No.6:- 21. Now, so far as the last incriminating circumstance is concerned, it is not the case that deceased Vimitra Bai had suffered any single injury. As per the post-mortem (Exhibit P-8) conducted and proved by PW-3 Dr. J.R. Bhagat, total 27 nos. of injuries in the form of bruises and lacerated wounds were found all over the body of deceased Vimitra Bai. Apart from that, wooden stick was seized from the place of incident though not from the memorandum statement of the appellant and vide FSL report (Exhibit P-25), except the plain soil (D), human blood was found on all the other seized articles i.e., wooden stick (A) seized at the instance of the appellant, blouse (B) of deceased Vimitra Bai, soil (C) seized from the spot, T-shirt (E) of the appellant and saree (F) of deceased Vimitra Bai, which also duly implicates the appellant for commission of the offence in question. 22. Thus, in view of the discussion and analysis made herein above, the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence as held by the Supreme Court in the matter of Sharad Birdhichand Sarda (supra) are duly established and we are of the firm view that it is none other than but the appellant herein who is the author of the crime in question. Therefore, the finding recorded by the Trial Court convicting the appellant for committing murder of his wife Vimitra Bai is absolutely justified and the conviction of the appellant for the offence punishable under Section 302 of IPC need no interference. 23. Accordingly, the impugned judgment & order dated 18.1.2018 passed by learned Trial Court convicting and sentencing the appellant for the offence punishable under Section 302 of IPC is hereby affirmed. 23. Accordingly, the impugned judgment & order dated 18.1.2018 passed by learned Trial Court convicting and sentencing the appellant for the offence punishable under Section 302 of IPC is hereby affirmed. Consequently, this criminal appeal is dismissed.