JUDGMENT : 1. This criminal appeal is preferred against the judgment of conviction dated 31.8.2017 and order of sentence dated 12.9.2017 passed in Sessions Trial no. 154 of 2015 by Additional Sessions Judge VI, Garhwa whereby the sole appellant was convicted under section 302 of IPC and sentenced to undergo R.I for life and pay fine of Rs.5000/-. 2. Learned counsel for the appellant submits that there is no eye witness to the occurrence and out of 10 prosecution witnesses, 5 turned hostile. The whole prosecution case is based on circumstantial evidence, but the chain of circumstance is neither complete nor proved. She further argues that no independent witnesses have stated that it is this appellant, who had committed the murder. She further contended that the learned Trial Court had wrongly applied Section 106 of Evidence Act, when admittedly the prosecution has independently not proved the case. She further submitted that the Trial Court had wrongly convicted the appellant on the basis of extra judicial confession made by the appellant before the informant and police, which is not admissible in law. 3. Learned counsel for the State submits that the witnesses have fully supported the case of the prosecution. The appellant has even confessed his guilt before the informant and the medical evidence also supported the prosecution story. She further submits that appellant even failed to explain the circumstance in terms of Section 106 of the Evidence Act as to how the deceased died. There is strong motive behind the occurrence as there was marital discord between the appellant and the deceased. Thus, on the facts and circumstances, the Trial Court has rightly convicted the appellant under Section 302 of IPC. 4. Prosecution story as per the fardbeyan of the informant is that in the year 2004, he married his daughter (deceased) with Israr Ansari (appellant). After few days of marriage the appellant, appellant’s father (Serajuddin Ansari) and appellant’s mother (Najma Bibi) started torturing his daughter. On 18.01.2015 at about 01:00 A.M. at night one Alijan on phone informed him that his daughter was murdered at 10:00 P.M. After receiving this information, he along with some fellow villagers reached the matrimonial house of his daughter where he saw the dead body of his daughter lying in the gram field. When he questioned his son-in-law, he confessed that he murdered his wife by strangulating her neck in the gram field. 5. When he questioned his son-in-law, he confessed that he murdered his wife by strangulating her neck in the gram field. 5. On the basis of the fardbeyan Ramkanda P.S Case No.2 of 2015 was registered under Section 302/34 of IPC was registered against the appellant, his father and mother. 6. After investigation police submitted chargesheet against the appellant and cognizance was taken for the offence under Section 302/34 of IPC. Thereafter the case was committed to the court of Sessions where charge was read over and explained to the appellant to which he pleaded not guilty and claimed to be tried. Charge was framed against the appellant under Section 302/34 IPC and the trial proceeded. 7. Altogether ten witnesses were examined on behalf of the prosecution. PW-1. Umar Ansari, PW-2. Alijan Ansari, PW-3. Farukh Ansari and PW-4. Badruddin Ansari were declared hostile by the prosecution and nothing important could be extracted from their statement. PW-5. Hamid Ansari, however was not declared hostile, but nothing important could be extracted from his deposition, which can have any impact on the trial. PW-6. Md. Abbas Ansari is a hearsay witness and on information of Alijan Ansari he reached the place of occurrence along with others and saw the dead body. He only stated that after the marriage of the deceased on 2004 all was going on well but after 4-5 years of marriage there was some dispute regarding dowry which was solved in a panchayati and after some time on 2015, he received the information of death of the deceased. However, in his cross-examination, he stated that there is no document of the said panchayati. PW-7. Md. Sharif is also a hearsay witness and when police reached the place of occurrence he also reached there and saw the dead body. PW-8. Naseem Ansari is the informant of this case. He stated that on 18.01.2015 at 01.00 A.M. at night, he got informant from Alijan Miyan that his daughter has been killed. He reached the place of occurrence at about 08.00 A.M. and saw her daughter lying in the field of gram. When he asked his son-in- law about the same, he confessed that he had killed his wife by strangulating her neck and thrown her body in the gram field. He further stated that the occurrence happened due to demand of dowry, for which a panchayati was also happened. When he asked his son-in- law about the same, he confessed that he had killed his wife by strangulating her neck and thrown her body in the gram field. He further stated that the occurrence happened due to demand of dowry, for which a panchayati was also happened. He produced the document before the Court, which was marked as Exhibit-1. PW-9. Dr. Ashok Kumar is the Doctor, who conducted the postmortem of the deceased. He found the following:- "The rigor mortis present in all four limbs, average built, mouth half opened, eye closed, and congested, blood clout at right nostril. The following antemortem injuries were found over the dead person-Bruise and ecchymosis in front of neck and side by the neck. On dissection petechial haemorrhage in subcutaneous tissues. Trachea was broken and also fractured of hyoid bone. No any external injury could be found over the body of dead person. Small intestine contained fluid and gas. Large intestine contained fluid and gas. Kidney, liver is being congested, urinal bladder half failed." He opined that the cause of death is most likely due to asphyxia caused by strangulation. The postmortem report as marked as Exhibit-2. PW-10. Braj Kishor Besra is the Investigating Officer of this case, who recorded the fardbeyan of the informant, which was marked as Exhibit-3, he also prepared the inquest report, which was marked as Exhibit-4. He recorded the statement of some of the witnesses and sent the dead body for postmortem. After completion of the investigation, he submitted the chargesheet on 31.03.2015. 8. After completion of the prosecution evidence statement under Section 313 of Cr.P.C. was taken. Thereafter, defence has also examined two witnesses, who are as follows:- D.W.1- Azhar Ansari is the minor son of the deceased. He stated that on the date of occurrence his father had gone to the Village- Chapariya to his sister house. He further stated that the villagers use to call her mother daain witch and they had problem with his mother. He further stated that his father never told his grand-father that he killed his wife. Further, he stated that it is the villagers who claimed her mother to be a witch and killed her. D.W.-2 is the appellant himself. He stated that he was not present in the village and had gone to his sister’s house at the time of occurrence. Further, he stated that it is the villagers who claimed her mother to be a witch and killed her. D.W.-2 is the appellant himself. He stated that he was not present in the village and had gone to his sister’s house at the time of occurrence. He also stated that the villagers use to have problem with his wife as they claimed that she is witch and due to that the villagers had killed her. He further stated that he never told his father-in-law that he killed his daughter. In cross- examination, he identified his signature in the confessional statement but stated that the same was taken in a plain paper. 9. After conclusion of the evidence, the Trial Court convicted the appellant under Section 302/34 of IPC and sentenced as aforesaid. 10. We have gone through the entire record and heard the argument of the parties. From the record, we find that there is no eye witness to the occurrence and most of the witnesses turned hostile. Thus, the whole case is based on circumstantial evidence. In a criminal case, the burden is upon the prosecution to prove the guilt of the accused beyond shadow of reasonable doubt. The chain of circumstances should be complete where each of the circumstance should be conclusive in nature and which should point only towards the guilt of the accused. 11. In a case of circumstantial evidence, the prosecution can take advantage of Section 106 of the Evidence Act when any fact is specially within the knowledge of the accused, but this resort can only be taken by the prosecution when its prima facie establishes the guilt of the accused. Section 106 of the Evidence Act cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. 12. The Hon’ble Supreme Court in the case of Anees vs State Govt. of NCT, 2024 SCC OnLine SC 757 at paras 43, 44 and 50 has held as under:- “ 43. 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. of NCT, 2024 SCC OnLine SC 757 at paras 43, 44 and 50 has held as under:- “ 43. 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. 44. Section 106 of the Evidence Act 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 on 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. 50. 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 guilt of the accused.” 13. In this case the prosecution failed to establish prima facie that the appellant is the person, who had committed the offence as there is no eye witness to the occurrence and the circumstances are not prima facie proved against the appellant as the body of the deceased was not even found in the house of the appellant and the same was found in the gram field where no one had seen this appellant or the deceased going towards. 14. 14. The prosecution tried to establish that there was motive behind the occurrence as there is an allegation of demand of dowry against the appellant and his family. From the evidence, we find that P.W.-6 and P.W.-8 have stated that before the Court there was demand of dowry from the family of the appellant and for which a panchayati was also held, but from the Exhibit-1, we find that the said panchayati was held way back in the year 2010 and incident had occurred in the year 2015. Thus, there is no relevance of the said statement. 15. Further, the prosecution case hinges upon a confessional statement given by the appellant admitting his guilt. The evidentiary value of an extra-judicial confession before the police or any person is a very weak piece of evidence. The Hon’ble Supreme Court in the case of Sahadevan v. State of T.N. , (2012) 6 SCC 403 has culled out the principle governing extra judicial confession. Paragraph 16 of the said judgment is quoted hereinbelow- “ 16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused: (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” 16. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” 16. If we analyze this case based on said principle, we find that the said statement cannot be said to be given voluntarily and there is material discrepancy in the same as the appellant in his deposition has stated he signed in a plain paper and he never confessed before his father-in-law. His son also deposed that his father never confessed before his grand-father. Thus, the confession before the informant is doubtful. In view of the aforesaid circumstances, conviction cannot be solely based upon the confessional statement. 17. Thus, in view of the fact that there is no eye witness to the occurrence and as the circumstantial evidence put forth by the prosecution could not complete the chain of circumstances, we are inclined to hold that the prosecution has failed to prove its case beyond shadow of doubt. Accordingly, this criminal appeal is allowed. 18. The judgment of conviction dated 31.8.2017 and order of sentence dated 12.9.2017 passed in Sessions Trial no. 154 of 2015 by the learned Additional Sessions Judge VI, Garhwa is set aside. 19. The appellant who is in custody be released forthwith if not required in any other case. 20. In view of the final disposal of this appeal, I.A. No.1821 of 2024 is dismissed as infructuous. 21. Let the Trial Court record be transmitted to the Court concerned along with a copy of this judgment.