Sanjay K. Agrawal, J.

1. This criminal appeal has been preferred by the appellant under Section 374(2) of CrPC against the impugned judgment dated 25/11/2014 passed by learned Sessions Judge, Raigarh in Sessions Trial No. 159/2014 whereby he has been convicted for offence punishable under Section 302 of IPC (two times) and has been sentenced to undergo life imprisonment with fine of Rs. 5000/-in default of payment of fine, additional imprisonment for two years each, with a direction to run both the sentences concurrently.

2. Case of the prosecution, in brief, is that on 12/05/2014 at about 12 AM, the appellant herein assaulted his wife Uttara Bai and his minor daughter Manisha, aged about 7 months, with a axe in his house on account of which they suffered grievous injuries and died.

3. Further case of the prosecution is that on 13/05/2014, the Station House Officer of Police Station Chhal received information through his mobile that the appellant herein has committed murders in village Kharra and is roaming freely and when police reached the village, Upsarpanch Hulasram Sahu (P.W.-1) reported that at about 6 AM when he went to open his shop at Katailpara, Videshi Dhanuhar (P.W.-3) told him that his son Mangtu Ram (appellant herein), after quarreling with his wife Uttara Bai, assaulted her and their minor daughter Manisha with axe and thereby, caused their death and he is roaming around armed with axe due to which Videshi Dhanuhar (P.W.-3) and his wife both stayed the night at the house of Charan Singh out of fear. On the said information, dehati merg intimation was registered vide Ex. P/1 and P/2 and dehati nalishi was registered vide Ex. P/3. After reaching the spot, summons were issued to the witnesses vide Ex. P/13 and P/14 and inquest was conducted vide Ex. P/11 and P/12. Thereafter, dead bodies of Uttara Bai and her daughter Manisha were sent to Government Hospital, Chhal for postmortem which was conducted by Dr. S.S. Bhagat (P.W.-8) and as per the postmortem reports of Uttar Bai (Ex. P/15) and Ku. Manisha (Ex. P/16), cause of death is said to be hypovolemic shock due to excessive bleeding through the cut wounds and the nature of death is said to be homicidal. From the spot, plain soil and blood-stained soil was seized vide Ex. P/7 and the full shirt and lungi worn by the appellant was seized vide Ex. P/8 and at the instance of the appellant, a tangi was seized vide Ex. P/9. The seized articles were though sent for forensic examination but no FSL report has been brought on record. After due investigation, the appellant was charge-sheeted for offence punishable under Section 302 of IPC (two times) which was committed to the Court of Sessions for trial in accordance with law. The appellant abjured his guilt and entered into defence.

4. In order to bring home the offence, prosecution examined as many as 9 witnesses and brought on record 27 documents. Statement of the appellant was recorded under Section 313 of CrPC wherein he denied guilt, however, he examined none in his behalf and only brought two documents on record.

5. Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased Uttara Bai and Ku. Manisha to be homicidal in nature and further finding the appellant to be author of crime in question, proceeded to convict him for offence punishable under Section 302 of IPC (two times) and sentenced him as aforesaid.

6. Mr. Manoj Jaiswal, learned counsel for the appellant, would submit that prosecution has failed to prove the offence beyond reasonable doubt and the trial Court is absolutely unjustified in convicting the appellant on the basis of the provision contained under Section 106 of the Indian Evidence Act, 1872 as the initial burden of proof could not be discharged by the prosecution, as such, the appellant is liable to be acquitted.

7. Per contra, Mr. Sameer Uraon, learned State counsel would submit that this is a case of house murder, therefore, Section 106 of the Evidence Act has rightly been applied by the trial Court to convict the appellant for the aforesaid offence and as such, the instant appeal is liable to be dismissed.

8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

9. The first question for the consideration would be whether the death of deceased Uttara Bai and her minor daughter Ku. Manisha was homicidal in nature

10. Learned trial Court has recorded an affirmative finding in this regard and held the death of deceased Uttara Bai and her minor daughter Ku. Manisha to be homicidal in nature relying upon the expert medical opinion of Dr. S.S. Bhagat (P.W.-8) who has proved the postmortem reports (Ex. P/15 and P/16) in which cause of death is hypovolemic shock due to excessive bleeding through the cut wounds and the nature of death is said to be homicidal. Considering the statement of Dr. S.S. Bhagat (P.W.-8) as well as the postmortem reports (Ex. P/15 and P/16) and the injuries suffered by the deceased, we are of the considered opinion that the trial Court has rightly held the death of deceased Uttara Bai and Ku. Manisha to be homicidal in nature, particularly when it has not been seriously questioned by learned counsel for the appellant. We hereby affirm the said finding recorded by the trial Court.

11. This brings us to the next question for consideration, which is, whether the appellant assaulted his wife Uttara Bai and his minor daughter Ku. Manisha, aged about 7 years, with axe and thereby, caused their death

12. Case of the prosecution is based on circumstantial evidence and the trial Court has relied upon the provision contained under Section 106 of the Evidence Act to convict the appellant for the aforesaid offence finding it to be a case of house murder.

13. At this stage, it would be appropriate to notice Section 106 of the Indian Evidence Act, 1872, 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."

14. This 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 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.

15. In the matter of Shambhu Nath Mehra v. The State of Ajmer AIR 1956 SC 404, their Lordships of the Supreme Court have held that the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution, to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The Supreme Court while considering the word "especially" employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J., observed as under:-

"11. .... The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge. If the 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. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B)."

Their Lordships further held that Section 106 of the Evidence Act cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts.

16. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar (2021) 10 SCC 725 in which it has been held by their Lordships of the Supreme Court as under:-

"22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.

23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused."

17. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab AIR 1956 SC 460, while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him.

18. The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar AIR 1974 SC 778 and it has been held that burden of proving the case against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence.

19. In the matter of Harijan Bhala Teja v. State of Gujarat AIR 2016 SC 2065, the Supreme Court has held that where the postmortem report establishes homicidal nature of death and since the accused only was staying with his wife at time of her death, it is for the accused to show has to in what manner she died and relying upon Section 106 of the Indian Evidence Act in paragraph 19 of the report it was held as under:-

"19. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since it is proved on the record that it was only the appellant who was staying with his wife at the time of her death, it is for him to show as to in what manner she died, particularly, when the prosecution has successfully proved that she died homicidal death."

20. Likewise, in the matter of Gajanan Dashrath Kharate v. State of Maharashtra AIR 2016 SC 1255, where the accused (Gajanan Dashrath Kharate) alleged to have killed his father and accused has not offered any explanation for homicidal death of his father, conviction was affirmed by the Supreme Court by holding as under in paragraph 14:-

"14. Upon appreciation of oral evidence and the circumstance of the recovery of blood stained clothes of the accused and the conduct of the accused in not offering any explanation for the homicidal death of his father, by concurrent findings, the trial court and the High Court rightly convicted the appellant-accused under Section 302 IPC and we do not find any reason to interfere with the impugned judgment."

21. In the matter of Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, Their Lordships of the Supreme Court have relied upon their earlier decision in Nika Ram v. State of Himachal Pradesh (1972) 2 SCC 80 wherein it was held that the fact that the accused alone was with his wife in the house when she was murdered with the weapon of offence and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation given by him, point to his guilt. Similarly, Their Lordships have also placed reliance upon their earlier decision in Ganeshlal v. State of Maharashtra (1992) 3 SCC 300 wherein the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 CrPC.

22. In order to hold the appellant guilty of the offence in question, the trial Court recorded the following findings in paragraph 22 of the impugned judgment :-

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23. Reverting to the facts of the present case in light of the evidence of prosecution witnesses particularly appellant's father Videshi Dhanuhar (P.W.-3), it is quite vivid that on the date of the incident, appellant was in the house only with his wife Uttara Bai and his minor daughter Ku. Manisha and appellant's father Videshi Dhanuhar (P.W.-3) and his wife had gone to some other village and when they returned, they found that deceased Uttara Bai and her daughter deceased Manisha were lying dead in the house and the appellant was roaming around armed with axe and out of fear that the appellant would also assault them, Videshi Dhanuhar (P.W.-3) and his wife stayed the night at the house of Charan Singh. Since there was no other person present in the house at the time of the incident except for the appellant and the two deceased persons, the appellant was required to explain the cause of death of the deceased persons in his statement under Section 313 of CrPC which he has failed to do. In that view of the matter, provision contained in Section 106 of the Evidence Act would apply and the appellant has rightly been convicted by the trial Court as the prosecution has rightly been able to discharge the initial burden of proof upon the appellant. Furthermore, recovery of axe and blood-stained shirt and lungi has also been made from the appellant, although no FSL report has been brought on record but the chain of circumstances is complete and the five golden principles constituting panchsheel to prove a case based on circumstantial evidence as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 have been established by the prosecution beyond reasonable doubt. In that view of the matter, we are of the considered opinion that the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC (two times).

24. Accordingly, this criminal appeal stands dismissed.

25. Let a certified copy of this judgment along with the original record be transmitted to trial Court concerned for necessary information and action, if any.