JUDGMENT : (Sanjay S. Agrawal, J.) : 1. This appeal has been preferred by the accused under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Cr.P.C.), questioning the legality and propriety of the judgment of conviction and order of sentence dated 25.01.2020 passed by the Additional Sessions Judge, Dongargarh, District Rajnandgaon (C.G.) in Sessions Trial No.09/2019, whereby the appellant has been convicted for commission of offence of murder of Hembai and her son-Kartik Verma under Section 302 of IPC on two counts read with Section 201 IPC and he has been awarded rigorous imprisonment for life and fine amount of Rs.100/- and in default of payment of fine, additional rigorous imprisonment for one month under Section 302 IPC for commission of offence of murder of Hembai and Kartik Verma, while rigorous imprisonment for five years and fine amount of Rs.50/- and in default of payment of fine, additional rigorous imprisonment of 15 days under Section 201 of IPC and the sentences were directed to run concurrently. 2. Briefly stated the case of the prosecution is that on 18.03.2019 at 7 AM, merg intimation vide Ex.P-19 was lodged by one Santuram Verma that from the villagers, he heard that one dead body is lying into the pond and when he has seen, it was found to be of his nephew Kartik Verma, where his head was found to be inflicted with sharpedged weapon and has also seen the dead body of his bhabhi (Hembai) the mother of said Kartik Verma, when he came to her house where her dead body was found to be in pool of bloodstains and, based upon the said information, FIR (Ex.P-32) has been registered on the same day in the Police Station, Dongargarh under Section 302 and 201 IPC against an unknown person. Inquest on the dead body of deceased-Kartik Verma was made vide Ex.P-3 while the dead body of his mother-Hembai was made vide Ex.P-4 on 18.03.2019. After inquest, the dead bodies were sent for autopsy which was conducted by Dr. Suchita Shrivastava (PW-8) who vide her report Ex.P-16 opined that the cause of death of the deceased-Kartik Verma was shock due to injuries to vital organs and drowning and, vide report Ex.P-23, cause of death of the deceased-Hembai was shock due to injuries to her vital organs and death of theirs were opined to be homicidal in nature. Suchita Shrivastava (PW-8) who vide her report Ex.P-16 opined that the cause of death of the deceased-Kartik Verma was shock due to injuries to vital organs and drowning and, vide report Ex.P-23, cause of death of the deceased-Hembai was shock due to injuries to her vital organs and death of theirs were opined to be homicidal in nature. During the course of investigation, the appellant was arrested on 19.03.2019 vide arrest memo (Ex.P-30) and based upon his disclosure statement (Ex.P-6), bloodstained blue shirt and black lower were seized from his bathroom on 19.03.2019 vide Ex.P-9 and, vide Ex.P-10, Stumps in three parts, one of which, was found to be with bloodstained was recovered from the field (badi) of the deceased-Hembai and a bloodstained iron mortar and pestle (Khalbatta), bloodstained knife, small knife and bloodstained Paving stone (Farsi Pathar) were seized at his instance on 19.03.2019 vide Ex.P-11 from the pond known as Dongrikhar’s Pond in presence of witnesses and likewise, a key was recovered vide Ex.P-12. Ornaments like Silver girdle (Kardhan), golden Mangalsutra tied with nylon threads, broken Mangalsutra with bloodstained and bloodstained golden patri were seized at his instance on the same day from Sandidih’s field vide Ex.P-13. Further, the bloodstained soil, plain soil and teeths (two in numbers) were recovered on 18.03.2019 from the spot, i.e. Dongrikhar Pond of Village Kolendra vide Ex.P-7, while from the deceased-Hembai’s house, blood was collected with the aid of cotton, a locket tied with black thread alleged to have been owned by the deceased-Kartik Verma and spreaded broken bangles of red and blue colour were recovered on 18.03.2019 vide Ex.P-8. Spot map (Najri Naksha) was prepared by the concerned Patwari vide Ex.P-14 and after recording the statement of the prosecution witnesses, a charge sheet was submitted before the Court of Additional Chief Judicial Magistrate, Dongargarh on 28.04.2019 against the appellant-Dhaneshwar for the offence punishable under Sections 302 and 201 IPC and the matter was, thereafter, committed to the Court of Sessions for its trial. The appellant has denied the charges so framed and claimed to be tried. 3. In order to bring home the guilt of the appellant, the prosecution has examined as many as 12 witnesses and produced 38 documents, while the appellant by taking a plea of alibi, has examined his father in his defence. 4. The appellant has denied the charges so framed and claimed to be tried. 3. In order to bring home the guilt of the appellant, the prosecution has examined as many as 12 witnesses and produced 38 documents, while the appellant by taking a plea of alibi, has examined his father in his defence. 4. After considering the evidence led by the parties, it was held by the trial Court that since certain articles, like shirt, weapons used in the alleged offence, were seized vide Ex.P-9 to Ex.P-13, in which, the human blood were found by virtue of FSL report Ex.P-38 and since the same were recovered exclusively within his knowledge, for which, he has failed to offer any explanation as required under Section 106 of the Indian Evidence Act, 1872 as to how the human blood were found thereon and with this observation, he has been held to be the author of the alleged crime. In consequence, he has been convicted and sentenced as mentioned hereinabove. 5. Being aggrieved with the aforesaid judgment of conviction and order of sentence, the appellant has preferred this appeal. 6. Shri Nilkanth Malviya, learned counsel appearing for the appellant submits that the finding of the learned trial Court holding that the appellant is the author of the alleged crime based upon the circumstantial evidence is apparently contrary to law as the same has not been considered in its proper manner. It is contended further that even in absence of establishing the case beyond all reasonable doubt, the Court below has erred in applying the provisions prescribed under Section 106 of the Indian Evidence Act while holding the appellant guilty for the commission of alleged crime. 7. On the other hand, Shri Rajkumar Gupta, learned Additional Advocate General appearing for the respondent/State has supported the impugned judgment of conviction and order of sentence as passed by the learned trial Court. 8. We have heard learned counsel appearing for the parties and perused the entire record. 9. From perusal of the record, it appears that the autopsy of the dead bodies of the deceased-Kartik Verma and his mother-Hembai were conducted by Dr. Suchita Shrivastava (PW-8), who has submitted her reports (Ex.P-16 & Ex.P-23) while opining the cause of their deaths occurred due to injuries on their vital organs and, accordingly found to be homicidal in nature. After due consideration of those reports, duly corroborated by Dr. Suchita Shrivastava (PW-8), who has submitted her reports (Ex.P-16 & Ex.P-23) while opining the cause of their deaths occurred due to injuries on their vital organs and, accordingly found to be homicidal in nature. After due consideration of those reports, duly corroborated by Dr. Suchita Shirvastava (PW-8), the learned trial Court has rightly arrived at a conclusion that death of Kartik Verma and his mother-Hembai are homicidal in nature and, we accordingly affirm the same. 10. It is now to be seen as to whether the Court below has erred in applying the provisions prescribed under Section 106 of the Indian Evidence Act while holding the appellant guilty for the alleged crime? 11. Dhiraj Verma, (PW-1) is the husband of the deceased-Hembai and father of the deceased-Kartik Verma, who was residing separately from his parents and brothers at Village Kolendra. According to him, he used to go to Surat (Gujrat) for the last 22 years for livelihood and stated that on 18.03.2019, he received the telephonic information from his brother-Santu Ram that someone has killed his son-Kartik and thrown his dead body into the pond while his wife-Hembai has been found dead in the house. Upon receiving the said information, he reached to his village on 19.03.2019, but, by the time, the last rites of theirs have already been performed. He deposed further that he came to know from the villagers that his son was inflicted with the aid of stone on his head while his wife-Hembai was inflicted with the aid of knife on her neck, head and chest. He deposed further that in the past, prior to the occurrence of the alleged incident, his wife informed him telephonically that the appellant-Dhaneshwar Verma had come to her house and sat on the bed, owing to which, an altercation took place with his (Dhaneshwar) mother, who on account of the said happening, assaulted her, the decesed-Hembai, while brother of appellant- Dhaneshwar took him towards home while assaulting him. It is stated further by him that the appellant in presence of the police has shown him ornaments of his wife which creates a doubt that his son and wife have been murdered by him. It is stated further by him that the appellant in presence of the police has shown him ornaments of his wife which creates a doubt that his son and wife have been murdered by him. In his cross-examination, it was stated that the appellant used to come to his house in his absence, when a suggestion was put to him and, reiterated that the alleged quarrel occurred when he (Dhaneshwar) came to his house and sat on his bed. 12. Santu Ram Verma (PW-4) is the brother of said Dhiraj Verma, who lodged the dehati merg intimation vide Ex.P-19 on 18.03.2019 upon knowing the alleged incident and based upon which, FIR Ex.P-32 was registered. Bhikham Lal (PW-5) was the Kotwar of the Village Kolendra and he also upon knowing the alleged incident, informed telephonically to the concerned police about the said incident. 13. Kesho Ram Korram (PW-6) is the attesting witness of the Seizure Memos (Ex.P-7 & P-8) and according to him, the bloodstained soil and teeths (two in numbers) were recovered from the spot, i.e. a pond known as Dongrikhar’s Pond of Village Kolendra vide Ex.P-7. He has not stated much about the recovery of articles vide Ex.P-8, but has admitted his signatures on it, whereby, the blood was collected with the aid of cotton from the house of the deceased-Hembai, apart from locket owned by her son Kartik Verma and also the broken bangles of red and blue colour. In his cross-examination, it was stated that the villagers have not raised any doubt on any one regarding commission of the alleged crime. 14. Gulab Verma, (PW-2) is the attesting witness to the disclosure statement (Ex.P-6) made by the appellant-Dhaneshwar Verma, as well as, of the seizure proceedings. According to him, the blood was collected from the deceased Hembai’s house on 18.03.2019 with the aid of cotton and also a locket tied with black thread owned by the deceased-Kartik Verma was recovered vide seizure memo (Ex.P-8) and, it was stated further that vide Ex.P-9, a blue shirt and black lower with bloodstained were recovered from the appellant’s bath room. He deposed further that at his (Dhaneshwar) instance, stumps (in three parts) were recovered from the badi of the deceased Hembai on 19.03.2019 vide Seizure Memo (Ex.P-10) and on the same date, i.e. 19.03.2019, at his instance, an iron mortar and pestle (Khalbatta), two knifes and a big size of black paving stone (Farsi Pathar) were recovered from appellant-Dhaneshwar vide Ex.P-11 and, a key was seized vide seizure memo Ex.P-12 and, ornaments, like golden Mangalsutra, silver girdle (Kardhan) with bloodstained were recovered vide Ex.P-13 based upon his said disclosure statement (Ex.P-6). In his cross-examination, it was stated by him that all the proceedings were done near the place “Bade Jhad” and they have not gone to any other place. He deposed further that the police has brought two persons of the village, namely Aswan and one driver to the Police Station on suspicion for the commission of the alleged crime, while the appellant (Dhaneshwar) was brought on some other day from the village-Sandidih. 15. Sudama (PW-7) is the another attesting witness of the disclosure statement (Ex.P-6) made by the appellant-Dhaneshwar, as well as, the seizure memos (Ex.P-9 to Ex.P-13) and according to him, he was not aware that what has been written therein as it was not read over to him before obtaining his signatures and stated further that the entire seizure proceedings were carried out in one place and they have not gone to any other place. 16. Sukhbati (PW-11) is the sister-in-law (Jethani) of the deceased- Hem Bai, but has turned hostile without supporting the prosecution story. 17. Mohamman Nasir Bathi (PW-12) is the Investigating Officer, who recorded the disclosure statement (Ex.P-6) of the appellant in presence of Gulab Verma (PW-2) and Sudama (PW-7) and based upon it, he recovered the alleged articles vide seizure memos (Ex.P-9 to Ex. P-13). He stated further that when he inspected the badi of deceased-Hembai on 18.03.2019, he did not get anything from the said place as entire of his focus was to prepare the inquest and postmortem of her dead body and, deposed further that the undergarments and vaginal slide of the deceased-Hembai and the clothes of deceased-Kartik Verma were seized vide Ex.P-35 and the alleged seized articles were sent for its chemical examination. 18. 18. Dev Sharan Verma (DW-1), who was the father the appellant- Dhaneshwar, has stated in his evidence that on the fateful day, his son had gone to the village known as Sandi for his work and from where, he was brought by the police and took his signatures on the papers while putting immense pressure upon him as he was assaulted badly by them. 19. From perusal of the aforesaid testimonies of the witnesses led by the parties, the entire case, thus, appears to have been based upon the circumstantial evidence as based upon the disclosure statement (Ex.P- 6) of the appellant, a bloodstained blue shirt and lower were recovered from his house vide Ex.P-9, while the stumps (in three parts), one of which is found to have been bloodstained, were recovered from the field (badi) of the deceased-Hembai on 19.03.2019 vide Ex.P-10 and on the same day, at his instance, an iron mortar and pestle (Khalbatta), knife and big size paving stone (Farsi Pathar) with bloodstained were seized vide Ex.P-11, along with a small knife from the pond known as Dongrikhar Pond of Village-Kolendra. It appears that apart from the alleged recoveries, a key was recovered from the “Jhadi” at the instance of the appellant vide Ex.P-12 and ornaments, like silver girdle (Kardhan), broken Mangalsutra and golden patri with bloodstained owned by the deceased-Hembai vide Ex.P-13. 20. It appears that apart from the alleged recoveries, a key was recovered from the “Jhadi” at the instance of the appellant vide Ex.P-12 and ornaments, like silver girdle (Kardhan), broken Mangalsutra and golden patri with bloodstained owned by the deceased-Hembai vide Ex.P-13. 20. The aforesaid articles were recovered at the instance of the appellant, apart from the bloodstained soil and teeth (two in numbers) which were recovered from the spot, i.e. Dongrikhar Pond vide Ex.P-7 and, the blood collected with the aid of cotton, locket and broken bangles from the house of the deceased-Hembai vide Ex.P-8 and, recovered articles were sent for chemical examination, alongwith the vaginal slide of the deceased-Hembai and, upon examination of those articles, the FSL Report (Ex.P-38) was submitted, wherein the blood was found almost in all the articles, while human bloods were found from the articles, known as cotton containing blood, marked as “C” (seized from the house of the deceased-Hembai), Stumps, marked as “E” (seized from the deceased-Hembai’s badi), Mangalsutra, marked as “J-1” and “J-2”, Shirt, marked as “K” (seized from the appellant’s house), undergarments, marked as “M-1, M-2 & M-3” of the deceased- Hembai and the underwear “N-2” of the deceased-kartik Verma, though the blood group could not be ascertained, except with regard to articles “C & J-2” (blood of the deceased-Hembai) which were found to be of group “O”. Apart from this, the human sperm was found in the vaginal slide of the deceased-Hembai. 21. After considering the above-mentioned seizures, marked as Ex.P-9 to Ex.P-13, coupled with the FSL Report (Ex.P-38), it was observed by the trial Court that since the alleged articles were recovered at the instance of the appellant-Dhaneshwar well within his knowledge and as he failed to offer any plausible explanation required to be made under Section 106 of the Indian Evidence Act as to how he came to know about these articles, the appellant has been held liable for the commission of the alleged crime. 22. Since, the conviction of the appellant has been made in view of the aforesaid observation of the trial Court, it is, therefore, necessary to be seen at this juncture the provisions prescribed under Section 106 of the Indian Evidence Act, 1872, which provides as under:- Section 106. Burden of proving fact especially within knowledge. 22. Since, the conviction of the appellant has been made in view of the aforesaid observation of the trial Court, it is, therefore, necessary to be seen at this juncture the provisions prescribed under Section 106 of the Indian Evidence Act, 1872, which provides as under:- Section 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. Illustrations: (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. 23. A bare perusal of the aforesaid provision would show that, it has been intended to meet certain exceptional cases in which it would be impossible or extremely difficult for the prosecution to prove the fact which is especially within the knowledge of the accused and the knowledge of that fact is not available to the prosecution. The said provision, however, cannot be utilized to cast the burden upon the accused to prove his innocence by relieving the prosecution from its burden of proof as the prosecution has to stand on its own footings and, cannot derive any strength or support from the weakness of defence. 24. The aforesaid observation is fortified by the principles laid down by the Supreme Court in the matter of Shambu Nath Mehra vs. State of Ajmer, reported in 1956 SCC Online SC 27 ( AIR 1956 SC 404 ), wherein it has been held at para 11, which reads as under:- 11. “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. 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.” …………….. 25. In view of the principles laid down by the Supreme Court in the above-referred matter, it is now to be seen as to whether it was difficult for the prosecution to prove the alleged recoveries which were alleged to have been made at the instance of the appellant especially within his knowledge. As observed hereinabove, the conviction of the appellant- Dhaneshwar has been made solely on the basis of the alleged recoveries made vide Ex.P-9 to Ex.P-13 based upon his disclosure statement (Ex.P-6). It is, however, to be noted, as reflected from the testimony of both the attesting witnesses, i.e. Gulab Verma (PW-2) and Sudama (PW-7) that, the entire said proceedings were, in fact, carried out near the place “Bade Jhad” and they have not gone to any other place. That apart, the weapon “Stumps”, alleged to have been used for the commission of alleged offence, was seized vide Ex.P-10 on 19.03.2019 from the field (badi) of the deceased-Hembai, but, it appears that prior to the said date, the Investigating Officer (PW-12) had visited and inspected the said place thoroughly on 18.03.2019 and did not get the said weapon at that particular time. It was, however, explained by him that since he was focused to prepare the inquest and the postmortem of the deceased-Hembai, therefore, the alleged weapon could not be traced out on 18.03.2019. It is, however, difficult to accept his said explanation, as it cannot be said that it was beyond his reach, particularly when it was inspected thoroughly by him. The alleged seizure proceedings, therefore, cannot be held to be proved beyond all reasonable doubt and, the prosecution has, thus, failed to discharge its duty in this regard and, the appellant, under such circumstances, cannot be held to be liable for the commission of the alleged crime for non offering the explanation to this effect, as held by the trial Court while taking recourse to the provisions prescribed under Section 106 of the Indian Evidence Act. 26. 26. Consequently, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 25.01.2020 passed by the Additional Sessions Judge, Dongargarh, District Rajnandgaon in Sessions Trial No.09/2019 is hereby set aside and, the appellant shall be set at liberty forthwith, unless required in connection with any other case. Compliance of this order be reported forthwith to the Registry of this Court.