JUDGMENT : Ananda Sen, J. This appeal is directed against the judgment of conviction dated 22.3.2014 and order of sentence dated 26.3.2014 passed by Sri Sachindra Kumar Pandey, the learned District and Additional Sessions Judge-II, Ghatsila in Session Trial No. 221 of 2013, arising out of Ghatsila P.S Case No. 93/2012, whereby and whereunder, the appellant has been punished to undergo rigorous imprisonment for life and fine of Rs.10,000/-for committing the offence punishable under Section 302 of the Indian Penal Code and rigorous imprisonment for three years and find of Rs.5,000/-under Section 201 of the Indian Penal Code. 2. Learned counsel appearing on behalf of the appellant-convict submitted that P.W.11, who is a child witness is a tutored witness, thus his evidence cannot be relied upon. Since the child was four years old, the Court should have scrutinized his evidence properly with extra caution, more so, when the child was living with the mother of the deceased, there is high probability that the child has been tutored. As per him, P.Ws. 6 (sister of the deceased) and 7 (informant of this case) stated that their statements were recorded at 11:30 p.m in the police picket, but the I.O. of this case, who is P.W. 9, had deposed that the statement of the informant has been recorded at the house at Qr. No. 59/4 in Moubhandar at 9:30 p.m., thus this discrepancy is vital for the prosecution. He further added that the informant had deposed that she had seen finger mark on the throat of the deceased, whereas the Doctor who conducted postmortem, while deposing, has stated that he has not seen any figure mark on the neck of the deceased. He argued that the Investigating Officer has also not seized the broken Cellphone nor obtained the Calls Details Report and nor produced the seized Dupata before the Court nor the same was sent for chemical examination, thus the investigation is not proper. He further submitted that the inquest report was not prepared at the place of occurrence, rather it was prepared on the next day at 7:30 a.m. at HCL Mortuary, Moubhandar, Ghatshila which creates doubt about the case. He further submitted that the inquest report was not prepared at the place of occurrence, rather it was prepared on the next day at 7:30 a.m. at HCL Mortuary, Moubhandar, Ghatshila which creates doubt about the case. He also submitted that P.W. 3 has admitted that he has signed the inquest report at 4:30 p.m. As per him, there is nothing on record to suggest that immediately before the death, there was any dispute between the husband and wife i.e. the deceased and no independent person of the locality was produced to give evidence on behalf of the prosecution to prove that the matrimonial relationship was not cordial between the deceased and the appellant. He stated that all the circumstances were not put to the accused while his statement was recorded under Section 313 Cr.P.C., benefit of which should be given to the appellant. The entire case, according to the appellant is based on the circumstantial evidences, but as the chain of circumstances is not complete, it must be held that the prosecution has failed to prove the guilt of the appellant beyond all reasonable doubt. In support of the case of the appellant, he referred the judgment of the Hon’ble Supreme Court reported in the case of (1984) 4 SCC 116 (Sharad Birdhichand Sarda Vs. State of Maharashtra). 3. Counsel appearing on behalf of the State submitted that from the evidence of the informant, it is clear that there was serious dispute between the appellant (the husband) and the wife (the deceased) and the wife was being tortured. In fact, just few hours prior to the occurrence, the appellant told the mother of the deceased (the informant) to take her daughter with her. He further submitted that the medical evidence also corroborates the injury on the deceased and the Doctor has opined that the ligature mark was postmortem in nature. The Doctor also found that the injury on trachea is ante-mortem in nature caused by pressure over the neck and the death was due to asphyxia, as a result of pressure over the neck, which clearly suggests that this is not a case of suicide, which the appellant is trying to make out. He further submitted that the appellant being the husband was present with the deceased, thus the appellant had to explain the circumstances, which he had miserable failed. He further submitted that the appellant being the husband was present with the deceased, thus the appellant had to explain the circumstances, which he had miserable failed. Section 106 of the Evidence Act is attracted in this case, as the dead body was also found in the room of the appellant and the appellant has also failed to explain the death of the deceased. He lastly submitted that there is no ground to acquit the appellant, thus he prayed that the judgment is fit to be upheld. 4. In this appeal, the appellant has been charged and convicted under Sections 302/201 of the Indian Penal Code. The prosecution case is based upon the fardbeyan of the informant, Purnima Das, in which, she stated that the marriage of her daughter -Ruma Aas (the deceased) was solemnized with the accused-appellant sometime in the year 2007. After sometime, the appellant started quarrelling with her due to which, the informant took her to her own house and thereafter on 6.2.2008, the deceased was allowed to return with her husband, as he gave an undertaking in writing that he would not assault her, but he again started beating her. Thereafter the deceased gave birth to a child, but his torture continued and the informant came to know that the accused developed illicit relationship with the wife of his brother and due to the said relationship, he used to beat his wife. The informant tried to persuade the accused but he did not agree when at 5:30 p.m. on the date of occurrence, she reached at the quarter of the accused, on his call. The accused told the informant to take her daughter (the deceased) along with all the utensils, but the informant told him that she would take her in the presence of five persons. Then she returned. Again at 8:30 p.m., the accused informed her over the telephone to take the deceased to hospital as she is not well. When she went to the residence of the accused, she saw in the first room, the bed was scattered and mobile phone was lying broken and in the second room, she saw the deceased lying on the bed and dupatta was hanging from the ceiling fan. When she tried to wake up her daughter, she found her dead. When she went to the residence of the accused, she saw in the first room, the bed was scattered and mobile phone was lying broken and in the second room, she saw the deceased lying on the bed and dupatta was hanging from the ceiling fan. When she tried to wake up her daughter, she found her dead. On inquiry, she came to know that the deceased was murdered by her husband and his family members and they had hanged a dupatta of the deceased from the fan to give an impression of suicide to conceal the evidence. 5. On the basis of the aforesaid fardbeyan of the informant, Ghatsila P.S. Case No. 93 of 2012 was registered for the offence under Sections 302/201/34 of the Indian Penal Code, against the appellant. Subsequently, the matter was taken up for investigation and after completion of investigation, charge sheet was submitted against the appellant and, accordingly, cognizance of the offence was taken and the case was committed to the Court of Sessions for trial. 6. To prove the prosecution case, the prosecution has produced eleven witnesses, who are P.W. 1 Aditya Namata, P.W.2-Tarak Namata, P.W. 3-Amit Kumar Dey, P.W. 4-Nawal Singh, P.W. 5-Nimai Chandra Dey, P.W. 6-Soma Bhuin, P.W.7-Purnima Das (informant) P.W. 8-Sukumar Dey, P.W. 9-Nand Kishor Sah (I.O.) , P.W. 10-Dr. Bibhakar Kumar and P.W. 11Ishan Aas. The prosecution has also proved and exhibited several documents to substantiate its case. 7. After closure of prosecution evidence, the statement of the appellant was recorded under Section 313 Cr.P.C in which he has denied the circumstance that has appeared against him in evidence and has claimed himself to be innocent. 8. The trial court after appreciating the evidences of both sides, held that the appellant is guilty for committing the offence under Section 302/201 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. P.W.1, Aditya Namata, deposed that he was informed that Ruma Aas was murdered in her sasural then he went there and saw that the deceased was lying on the bed, mobile was lying broken and bed was scattered and there was marks on the throat of the deceased. He further deposed that her husband used to torture her. In cross-examination, the defence has not been able to bring any material contradiction. He further deposed that her husband used to torture her. In cross-examination, the defence has not been able to bring any material contradiction. P.W.2-Tarak Namata deposed that he was informed that the deceased was murdered by her husband by pressing her throat in his quarter and thereafter this witness also went there and saw that faecal matter was lying in one room and in the next room the dead body of the deceased was lying and he saw that there was injury on her throat. He also deposed that the deceased was married with the accused 5-6 years ago and thereafter she was living in her sasural and ten days prior to the occurrence the accused called this witness who is mason by profession to raise wall of his quarter and he worked there 3-4 days and saw that the accused used to beat his wife because of raising objection by the deceased for illicit relation of the accused with wife of his brother, for which panchayat was also held in which, the accused had given in writing that he would not beat the deceased in future but even thereafter he continued the same. P.W.3-Amit Kumar Dey is the witness of the inquest report and he proved his signature on the inquest report, Ext. 1. He has also proved the signature on the fardebeyan (Ext.-2). He further deposed that the accused had committed the murder of the deceased by pressing her throat. He deposed that the deceased was married with the accused on 3.8.2007 and thereafter she sent to live in sasural whereas the accused used to beat her because he had illicit relation with the wife of his brother and due to the same a panchayat was also held on 6.2.2008 in which, the accused had given in writing that he would not beat the deceased in future, but he continued the same and on 20.8.2012 the appellant called the mother of the deceased by telephone and told her to take the deceased with all articles but she told him that she would take her in presence of five persons. Again at about 8:30 p.m, the accused told the mother of the deceased by telephone to take the deceased and then the informant went there and he was also informed and he also went there and saw that the bed was scattered, mobile was broken and there was also faecal matter in the first room and in the next one where the deceased was lying dead. On asking, the accused confessed that he had murdered her by pressing her throat. The son of the deceased and the appellant also told that the accused had murded the deceased by pressing throat of the deceased. P.W.4-Naval Singh, deposed that he was also occupant of HCL quarte in the same block in the year 2008 and at that time the accused used to live there along with his wife and at that time, the relation between them was good. He further deposed that on 6.2.2008 some dispute arose and his wife went to her maike and then the accused took this witness with him to her sasural where panchayat was held and written declaration was prepared in presence of this witness and this witness also put his signature (Ext.-3) on that declaration paper. In cross-examination, this witness had admitted that when he left his quarter in the year 2011, the accused was allotted the same quarter by HCL. P.W.5-Nimai Chandra Dey deposed that the quarrel also took place between the appellant and the deceased and thereafter she came back to her maike where on 6.2.2008 a panchayat was held, paper was prepared on which, this witness had also put his signature (Ext.3/1). He further deposed that at 8:30 p.m, the informant told this witness that the accused had murdered the deceased and then this witness also went there and saw the dead body. He also deposed that the accused also confessed that he had murdered the deceased. At that time child of the deceased and the accused also told this witness that the deceased was murdered by the accused. P.W.6-Soma Bhuin (the sister of the deceased) deposed that the relationship of the deceased with her husband was not good and he used to beat her and due to the same on 6.2.2008 a panchayat was also held in which, the accused had given in writing that he would not beat the deceased in future. P.W.6-Soma Bhuin (the sister of the deceased) deposed that the relationship of the deceased with her husband was not good and he used to beat her and due to the same on 6.2.2008 a panchayat was also held in which, the accused had given in writing that he would not beat the deceased in future. On 20.8.2012 at about 4:30 p.m in the evening the accused asked the informant to take the deceased but the informant told him that she would take her daughter in the presence of five persons and again at about 8:30 p.m, in the evening, the accused told the informant to take the deceased to the hospital and thereafter the informant went at the house of the deceased and saw that the bed was scattered, mobile was broken on the floor and in the second room this witness saw her sister lying dead and she also saw the marks on her body and throat. She further deposed that the appellant confessed that he had murdered the deceased and he had done right by doing so. This witness has also proved her signature on the fardbeyan (Ext.2/1). She has also proved her signature on the seizure list (Ext.4). P.W.7-Purnima Das (the informant of this case) has fully supported her earlier version, given in her fardbeyan. She deposed that on 20.8.2012 the accused told her by telephone to take her daughter and when she went there he told her to take the deceased along with her entire articles and then the informant told him that she would take her in presence of 5 persons and she went back to her house and at about 8:30 p.m at night, the accused again told her on telephone to take the deceased to the hospital and when she went there the accused was standing out side and told the informant to see her daughter inside the house and thereafter when she went inside the room she saw faecal matter in the first room, the bed was scattered and mobile was lying on the floor and she also saw her daughter lying dead in her bed room and dupatta was hanging from the fan. She also deposed that she saw the marks on the throat as well as chest and it appeared that she was murdered and when the informant asked that the son of the deceased present there, who told her that the accused had murdered the deceased. He further deposed that thereafter the police came and recorded her statement on which she also put her signature which she has proved (Ext.2/2). P.W.8-Sukumar Dey is the witness of the inquest report and he proved his signature on the inquest report, Ext. 1/1. He further deposed that he saw marks on the throat of the deceased and it appeared that she was murdered by pressing her throat. This witness also deposed that the son of the deceased told him that the accused had committed the murder of the deceased. He also deposed that on information by the witness Tarak, he went at the quarter of the deceased and he found mobile was broken, bed was scattered, faecal matter was also lying there and in the next room, he saw that the deceased was lying dead. He also saw marks on the throat of the deceased. He also deposed that the deceased earlier told him regarding the torture by her husband. P.W.9-Nand Kishor Sah is the Investigating Officer of this Case, who deposed that on 20.8.2012, he was posted as I/c of Moubhandar O.P. and recorded the statement of the informant at 9:30 p.m. He has proved the fardbeyan of the informant to be in his own writing and signature (Ext.2/3). He has further proved the forwarding and endorsement (Exts. 2/4 and 2/5). He has also proved the formal. FIR. He further deposed that when he entered inside the room, he found faecal matters on the floor and the bed was scattered, mobile was broken without SIM and in the other room, the dead body of the deceased was lying on the bed and blue colour dupatta was handing from ceiling fan just above the dead body. Thereafter the accused was arrested. He has further proved the inquest report of the deceased (Ext.1/2). In cross-examination, he has admitted that he had not sealed the seized dupatta. P.W.10-Dr. Bibhakar Kumar; who deposed that he conducted the postmortem examination on the dead body of the deceased and he has proved the postmortem report prepared by him (Ext. 7). Thereafter the accused was arrested. He has further proved the inquest report of the deceased (Ext.1/2). In cross-examination, he has admitted that he had not sealed the seized dupatta. P.W.10-Dr. Bibhakar Kumar; who deposed that he conducted the postmortem examination on the dead body of the deceased and he has proved the postmortem report prepared by him (Ext. 7). This witness has deposed that on postmortem examination, he has found postmortem ligature mark present over upper part of the neck. He has found contusion of the back portion of trachea muscle in area 7 cm x 3 cm on its middle part and 2 cm x 1 cm on its right side and 1 cm x 1 cm on left side. He has opined that the injury on trachea is anti mortem in nature and caused by pressure over the neck and the ligature mark caused by ligature material was postmortem in nature and death was due to asphyxia as a result of pressure over the neck. P.W.11-Ishan Aas is the son of the deceased and accused and he is a child witness, aged about five years. He deposed that her mother was murdered by his father (accused) by pressing her throat. He further deposed that at that time, he was weeping. He further deposed that there was frequent quarrel between the accused and the deceased. He further deposed that the accused pressed the throat of the deceased and he had seen the same. 9. After hearing the learned counsel for the parties and after going through the evidences of this case, we find that the appellant is the husband of the deceased. Admittedly, there is no eye witness, who had seen this appellant committing the murder of the deceased. The entire prosecution case is based on circumstantial evidence. Now let us analyse the circumstances and come to a conclusion whether those circumstances are sufficient to lead to the only conclusion that this appellant had committed the offence beyond all reasonable doubt. The first circumstance is the extremely bad relationship between the husband (appellant) and the wife (deceased). P.W. 1 though is hearsay witness, but he stated that this appellant used to torture the deceased. The first circumstance is the extremely bad relationship between the husband (appellant) and the wife (deceased). P.W. 1 though is hearsay witness, but he stated that this appellant used to torture the deceased. P.W. 4 was a resident of the same block in the year 2008 and he deposed that there were some differences between the husband and the wife, for which, a panchayati was held and a written declaration was prepared in his presence and he had put his signature on the declaration also. Though the same was of the year 2008 whereas, the occurrence had taken place in August 2012, but the relationship was not good, which is also evident from the evidence of P.W. 6, who stated that on 20.8.2012 at about 4:30 p.m. (i.e. on the date of occurrence) this appellant asked the informant to take the deceased from the matrimonial house but the informant told her that she would take her daughter back in presence of five persons. This incident had occurred at 4:30 p.m., but at 8:30 p.m, in the evening again the accused told the informant to take the deceased to the hospital as she was not well. The informant then reached the place of occurrence and found her daughter dead. It was also found that the bed was scattered, mobile was broken and there was mark on the body and throat of the deceased. The informant also stated in the same line. P.W. 11 i.e. a child, who is son of the appellant and the deceased, stated that there was frequent quarrel between the appellant and the deceased. Thus, from the evidences, as stated, it is clear that the relationship between the appellant and the deceased was not cordial and they often indulged in quarrel. Further from the evidence of P.Ws. 6 and 7, it is clear that few hours before the death of the deceased, this appellant had told the informant to take her daughter back to her house, to which, she stated that she would take her back in presence of five persons. Thus, it is clear that the prosecution has proved that there was bad relationship between the parties. 10. The second circumstance is the place of occurrence. Admittedly, the place of occurrence is the house of the appellant. P.Ws. Thus, it is clear that the prosecution has proved that there was bad relationship between the parties. 10. The second circumstance is the place of occurrence. Admittedly, the place of occurrence is the house of the appellant. P.Ws. 1, 2, 5, 6 and 7 stated that on receiving the information about the death of the deceased, they went to her house (house of the appellant also) and found her dead and the dead body was lying on the cot in the second room. The Investigating Officer (P.W. 9) also stated that the dead body of the deceased was lying on the bed. These witnesses thus clearly proves that the death had taken place in the house of the appellant. 11. The next circumstance is the cause of death. The cause of death is not natural, rather it is homicidal. The Doctor (P.W.10) opined that there are injuries in trachea which are ante-mortem in nature and caused by pressure over the neck and the ligature mark caused by ligature material, which was postmortem in nature and death was due to asphyxia, as a result of pressure over the neck. Thus from this evidence, it is clear that the deceased died unnaturally, which is homicidal and with a view to destroy the evidence and to mislead, the ligature mark was made by material i.e. Dupatta, which was found hanging from ceiling fan of the home, just above the dead body. The hanging of Dupatta from ceiling fan above the dead body has also been narrated by P.W.9, who is I.O. of this case. P.W. 7 also found that the Dupatta was hanging from the ceiling fan. This clearly suggests that the deceased was murdered by throttling and thereafter to give a colour of suicide by Dupatta, she was throttled. 12. The another circumstances is the scene of the murder i.e. the situation of the room in which the dead body was found. P.W. 1 stated that the deceased was lying on the bed, mobile was broken and the bed was scattered. P.W. 2 also stated that when he went to the house of appellant he saw that the dead body was in one room and there was faecal materials lying in another room. P.W 6 also saw scattered bed and broken mobile on the floor. P.W. 2 also stated that when he went to the house of appellant he saw that the dead body was in one room and there was faecal materials lying in another room. P.W 6 also saw scattered bed and broken mobile on the floor. P.W. 7 also stated in the same manner that she saw faecal material in the first room, the bed was scattered and mobile was lying on the floor and the dead body of the deceased i.e. her daughter was lying on the bed. The Investigating Officer also found that the bed was scattered and mobile was broken without SIM in another room and the dead body was lying on the bed and dupatta was hanging from ceiling fan. This clearly suggests that there was external force applied upon the deceased and these were the sign of altercation and violence. 13. Another circumstances is the presence of the appellant at the place of occurrence. P.W. 7 stated that on receiving the information when she went to the house of this appellant to see her daughter, this appellant was standing outside and told her to go inside the room to see her daughter. The Investigating Officer in paragraph 15 stated that when he reached the place of occurrence, the people had caught this appellant, then he arrested him. The statement of P.W. 6 in paragraph 9 also suggests that the appellant was present at the place of occurrence as she stated that when she reached there, the appellant was present and this appellant stated that he has not committed any wrong by murdering of the deceased. In statement recorded under Section 313 Cr.P.C, this appellant has never came up with any plea that he was not present at the place of occurrence. Thus, even for the sake of argument, this statement is not taken to be a confession, yet the fact that the appellant was present at the place of occurrence is established. 14. It is also not a case of the defence that there were other persons present at the place of occurrence. The aforesaid circumstances clearly point towards the guilt of the appellant. In this aspect we must take note of Section 106 of the Evidence Act, which reads as under:- 106. 14. It is also not a case of the defence that there were other persons present at the place of occurrence. The aforesaid circumstances clearly point towards the guilt of the appellant. In this aspect we must take note of Section 106 of the Evidence Act, which reads as under:- 106. Burden of proving fact especially within knowledge.–– When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 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. As per aforesaid provision, it was within the exclusive knowledge of this appellant as to how the deceased died, but he never disclosed the facts. In examination under Section 313 Cr.P.C, the appellant should have explained the same but he deliberately did not do so. Thus adverse inference can definitely be drawn against this appellant. All these circumstances clearly leads to the conclusion that this appellant had committed the murder of the deceased. 15. More or less in a similar type of case where only husband and wife was present and the wife was found dead, the Hon'ble Supreme Court in the case of Sukhpal Singh Vs. NCT of Delhi reported in 2024 INSC 385 has held in paragraph 46 as under; “46. The circumstances leading to murder of Usha were in the exclusive knowledge of the appellant. He has offered no explanation as to the manner in which Usha was strangled to death within the confines of the room where only he and the deceased were present. The bald plea of denial offered by the accused by way of an explanation to this gravely incriminating circumstance is not sufficient to absolve him of the burden cast upon him by virtue of Section 106 of the Indian Evidence Act, 1872.” 16. In this case, there is one child witness (P.W.11), aged about 5 years at the time of occurrence. He is the son of both the appellant and the deceased. In this case, there is one child witness (P.W.11), aged about 5 years at the time of occurrence. He is the son of both the appellant and the deceased. The Court found that he is fit to depose and he stated that it is his father who has committed the murder of his mother by pressing her throat and he was weeping at that point of time. The counsel for the appellant has questioned the credibility of this witness on the ground that he was only aged about 3 ½ years when the occurrence had taken place and thereafter since he was residing with P.W. 7 (the informant) who tutored him what has to be said. We find no improbability in his deposition as 3-4 years old child, who saw his mother being throttled by his father can after one and half year recall the same. Even if we do not consider his deposition then also from the other circumstances, narrated above, it has been proved by the prosecution that the guilt of the appellant is beyond all reasonable doubt. 17. So far as minor discrepancies are concerned, as argued by the appellant, we find that the statement of inquest witness that he had signed the inquest documents at the morgue and thus there was no inquest from the house of the appellant is of no consequence, as another witnesses including the I.O. have specifically stated that the dead body was found in the house of the appellant while the appellant was present. Thus in the face of positive evidence, the discrepancies which has been put forth about the recovery of the dead body from any other place cannot be accepted. Another small issue raised by the appellant is in respect of recording of fardbeyan. The appellant tried to show that the fardbeyan was given in the police station past mid-night, as the informant has stated that he had given her statement in police station, whereas the I.O has recorded the same in the house of the appellant, where the dead body was recovered. This minor contradiction in statement of P.W. 7 is immaterial. She is an old lady, her state of mind must be taken note of where she had immediately lost her daughter, who was murdered. Further the Investigating Officer had stated that he recorded the statement at 9:30 p.m in the quarter. This minor contradiction in statement of P.W. 7 is immaterial. She is an old lady, her state of mind must be taken note of where she had immediately lost her daughter, who was murdered. Further the Investigating Officer had stated that he recorded the statement at 9:30 p.m in the quarter. This minor contradiction cannot demolish the prosecution case. 18. So far as not finding finger print over the neck of the deceased is concerned, the same is immaterial as the Doctor has categorically stated that the deceased died due to Asphyxia by pressure over neck and the ligature mark caused by ligature material was postmortem. Thus not finding any finger mark over the body of the deceased is not fatal for the prosecution. 19. So far as cause of death is concerned, it has been proved by the evidence that the same was caused by pressure over neck thus non-production of dupatta is not fatal for the prosecution. 20. From the impugned judgment we find no illegality. We concur with the finding of the Trial Court. Thus on overall consideration, we find that there is no merit in this appeal and the same is thus liable to be dismissed and the judgment of conviction dated 22.3.2014 and order of sentence dated 26.3.2014 passed by Sri Sachindra Kumar Pandey, the learned District and Additional Sessions Judge-II, Ghatsila in Session Trial No. 221 of 2013 is confirmed. 21. In the result, this appeal is dismissed. Let the Trial Court Records be sent back to the Court concerned forthwith, along with a copy of this judgment. Subhash Chand, J. -I agree.