1 2025:CGHC:12985-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 706 of 2021 Amjad Khan S/o Noor Khan Aged About 34 Years, R/o 70 Kholi Ward No.7, Chakarbhata, Police Station Chakarbhata, District Bilaspur, Chhattisgarh. ... Appellant(s) (In Jail) versus State of Chhattisgarh Through Station House OfÏcer, Police Station Chakarbhata, District Bilaspur, Chhattisgarh. ...Respondent(s) For Appellant : Mr. Rishi Rahul Soni, Advocate. For Respondent/State : Mr. Swajeet Ubeja, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 19 .03.2025 1. Heard Mr. Rishi Rahul Soni, learned counsel for the appellant. Also heard Mr. Swajeet Ubeja, learned Panel Lawyer, appearing for the respondent/State. BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.03.22 17:28:19 +0530 2 2. This criminal appeal filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 28.05.2021, passed by the learned Session Judge, Bilaspur, District Bilaspur (C.G.) in Sessions Trial No. 144 of 2018, whereby the appellant has been convicted and sentenced as under: Conviction under Section Sentence Section 302 (three counts) of the Indian Penal Code (for short, ‘IPC’) Rigorous imprisonment (for short, ‘R.I.’) for life and fine of Rs. 1000/-, in default of payment of fine, 06 months R.I. more. All the sentences run concurrently. 3. Case of the prosecution, in brief, is that retired Home Guard Noor Khan (PW-3) was residing with his family in Ward No. 7 of Chakarbhatha. He had two sons i.e. accused, Amjad Khan and Asraf (PW-4) and one daughter Razia. In the family system, Noor Khan and Zubeda Begum (PW-1) used to have lunch at the house of their younger son Asraf and dinner at the house of their elder son accused Amjad Khan. On the night of the incident i.e. on 09.08.2018, after having dinner at the house of accused Amjad, Zubeda Begum and her husband Noor Khan went to their room. On 10.08.2018 at about 7.00 a.m., when they woke up, they saw that the door of their son Amjad Khan's room was opened and his wife Sharifa Begum and both the children, namely, Anjum Nisha and Aftab were on bed and they were covered with a sheet, all three were lying dead in a blood-soaked condition, marks of cuts made by a sharp- 3 edged weapon were visible on their necks. Accused Amjad Khan was not present in the house. Accused Amjad Khan's father Noor Khan reported the sudden death of Sharifa Begum, Anjum Nisha and Aftab at Police Station Chakarbhatha, on the basis of which merg intimation (Exs.P/3 to P/5) was registered and on the information given by Noor Khan, father of accused Amjad Khan, a First Information Report (FIR) as Ex.P/30 was registered against accused Amjad Khan at the same time in Police Station Chakarbhatha. Thereafter, on receiving the information at the Police Station, Investigating OfÏcer, Kalim Khan (PW-15) went to the spot and inspected the scene of the incident and after making the map as Ex.P/7, seized the bloodstained sheet of the deceased in front of witnesses as per the seizure memo Ex.P/6. Notice Exs.P/8, P/9 and P/10 were given to the Panchas for the body Panchnama and in the presence of Panchas, Ex.P/11 for deceased Sharifa Begum, Ex.P/12 for deceased Anjum Nisha and Ex.P/13 for deceased Aftab Khan were prepared and on the advice of Panchas, a decision was taken to conduct postmortem of all the three bodies and by giving Duty Certificate Ex.P/28 to Constable No. 887 Shivshankar Kurre (PW-9), all the three bodies were sent for postmortem and after postmortem, the bodies were handed over to their relative Nazir Khan (PW-5) for burial through the dead body supurdnama Exs.P/23 to P/25. 4. It is also the case of the prosecution that during the entire proceedings, accused Amjad Khan was missing from home, who was found on 10.08.2018 in the evening at Chakarbhatha Chowk, he had consumed some poisonous medicine, so Investigating OfÏcer, Kalim Khan (PW-15) got him medically examined vide Ex.P/36 and obtained the 4 medical report (Ex.P/33) and also obtained a certificate from the Doctor regarding his dying declaration vide Ex.P/34 and gave a memo regarding recording dying declaration of accused vide Ex.P/37 to the Tehsildar and recorded the dying declaration of the accused (Ex.P/29). On the basis of preliminary investigation and dying declaration, accused Amjad Khan was taken into custody on suspicion of murder of his wife and children, Investigating OfÏcer, Kalim Khan interrogated him and recorded the memorandum statement of the accused vide Ex.P/16 on the basis of which, the knife used in the incident was seized as per seizure memo Ex.P/17. Thereafter, the accused was arrested as per the arrest/Court Surrender Memo (Ex.P/15) and his father Noor Khan was informed about the arrest (Ex.P/38). The Investigating OfÏcer gave the memo regarding preparing of spot map (Ex.P/27) to the Tehsildar, which was prepared by the Patwari vide Ex.P/14. The query report (Ex.P/26) regarding the seized knife was obtained from the Doctor and the clothes, knife etc. seized from the spot were sent for FSL through the Superintendent of Police ofÏce. The FSL report (Ex.P/40) was received. 5. Dead body of the deceased were sent for postmortem to the Community Health Center, Bilha, District Bilaspur (C.G.). Dr. Geeta Pradhan (PW-6) conducted postmortem vide Ex.P/20 on the body of deceased, Sharifa Begum and found following injuries :- (i) The deceased had two cut injuries on the right side of her neck. The upper injury was 10 cm long, 2.5 cm wide, and 4 cm deep. The lower cut injury was longitudinal, measuring 9 cm in length, 3 cm in width, and 1 cm in depth. Both injuries on the deceased's neck had cut through the skin, superficial fascia, fat, 5 deep fascia, platysma, sternocleidomastoid muscle, and the external carotid artery. Rigormortis was present in the deceased's body. After conducting the postmortem, the Doctor expressed her opinion in the postmortem report vide Ex.P/20 that nature of the death of the deceased was homicidal, caused by excessive bleeding due to the cutting of major blood vessels in the neck. Dr. Geeta Pradhan (PW-6) also conducted postmortem vide Ex.P/21 on the body of deceased, Ku. Anjum Nisha and found following injuries :- (i) The first injury, located above the clavicle, measured 10 cm in length, 2 cm in width, and 1 cm in depth. (ii) A second injury, 2 cm above the first, measured 6 cm x 2 cm x 1 cm. (iii) The third injury measured 10 cm x 2.5 cm x 1 cm. (iv) The fourth injury measured 11 cm x 3 cm x 1 cm. (v) The fifth injury measured 3 cm x 2 cm x 1 cm. (vi) The sixth injury measured 4 cm x 2 cm x 1 cm. (vii) The seventh injury measured 10 cm x 2 cm x 2 cm. (viii) The eighth injury was triangular in shape and located next to the fourth injury on the right side. (ix) The ninth injury measured 3 cm x 2 cm x 1 cm. All the cut injuries had reddening, with cuts through the skin, superficial fascia, fat, deep fascia, superficial vessels, and muscles. The right external carotid artery was also cut, which was antemortem. The palms and 6 soles were pale. Rigormortis was present. After conducting the postmortem, the Doctor expressed her opinion in the postmortem report vide Ex.P/21 that nature of the death of the deceased was homicidal, caused by excessive bleeding due to the cutting of major blood vessels in the neck. Dr. Geeta Pradhan (PW-6) also conducted postmortem vide Ex.P/22 on the body of deceased, Aftab Khan and found following injuries :- (i) A scratch on the front of the left leg, measuring 7 cm x 2 cm. (ii) The deceased's left hand, face, left ear pinna, and neck were stained with blood. (iii) A cut injury on the neck, measuring 12 inches x 2 inches, cutting through the skin, superficial fascia, fat, deep fascia, platysma, sternocleidomastoid muscle, superficial vessels, and muscles. Both the right and left external carotid arteries and anterior jugular vein were cut. The trachea (windpipe) was severed into two parts, visible externally. The esophagus (food pipe) was also cut, severed into two parts. The cut injury on the neck extended up to the food pipe. Rigormortis was present in the deceased's body. After conducting the postmortem, the Doctor expressed her opinion in the postmortem report vide Ex.P/22 that the nature of the death of the deceased was homicidal, caused by excessive bleeding due to the cutting of major blood vessels, the trachea, and the esophagus in the neck. 6. Statements of the witnesses were recorded. After due investigation, the Police had filed the charge-sheet against the accused before the 7 jurisdictional criminal Court and the case was committed to the Court of Session for trial from where the learned Session Judge, Bilaspur, District Bilaspur (C.G.) received the case on transfer for trial and for hearing and disposal in accordance with law. 7. The trial Court has framed charges against the appellant for the offence punishable under Section 302 of the IPC and proceeded on trial. 8. The accused, Amjad Khan abjured guilt and entered into defence and has stated in his defence that he is innocent, he has been falsely implicated, that night he had gone out of the house after having dinner with everyone, he has no knowledge about the incident. 9. In order to bring home the offence, the prosecution examined as many as 15 witnesses and exhibited 41 documents. The accused examined none in his defence. 10. The learned trial Court, upon appreciation of oral and documentary evidence available on record, by its judgment dated 28.05.2021, convicted the accused/appellant for the offence punishable under Section 302 (three counts) of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed. 11. Learned counsel for the appellant vehemently argued that the conviction of the appellant is substantially based on the circumstantial evidence, without there being any eye witness, though the chain of circumstances are missing and not connected to each other. The evidences emerging from the Court statements of Zubaida Begum (PW- 1), Noor Khan (PW-3) and Asraf Khan (PW-4) go to show that on the date of incident, the appellant had gone outside of house after taking dinner, 8 and therefore, no adverse inference can be drawn against the appellant under Section 106 of the Indian Evidence Act, 1872 because the prosecution has not discharged its own burden to prove the case beyond reasonable doubts. He further argued that the subsequent conduct of the appellant may be relevant under Section 8 of the Indian Evidence Act, 1872, but the same cannot be sole basis for conviction under Section 302 of the IPC. 12. It is further submitted by the learned counsel for the appellant that the dying declaration (Ex.P/29) allegedly given by appellant is concerned, the same is doubtful. Even otherwise, since the appellant is alive, the said dying declaration is not admissible under Section 32 of the Indian Evidence Act, 1872 and the same can be used only for corroboration and contradiction purpose. Insofar as the confessional part in the alleged dying declaration (Ex.P/32) is concerned, it is not admissible in light of the provision given in Section 24 of the Indian Evidence Act, 1872. He also submits that insofar as non-explanation/false explanation on the part of the accused is concerned, the same cannot be used to complete the missing link in chain of circumstances. In the present case, the prosecution has failed to prove the chain of circumstances, and further, the prosecution has failed to prove proximate and immediate motive for committing murder of the deceased and the prosecution has failed to prove its case beyond reasonable doubts, therefore, the appellant is entitled to benefit of doubt. 13. On the other hand, learned State counsel supports the impugned judgment and submits that there is ample evidence on record to connect the accused/appellant with the offence in question. The learned trial 9 Court, after proper appreciation of the evidence and materials available on record, has convicted and sentenced the appellant/accused, which warrants no interference, and therefore, the appeal deserves to be dismissed. He also relied on the judgments passed by the Hon’ble Supreme Court in the matters of Nusrat Parween vs. State of Jharkhand, reported in 2024 SCC Online SC 3683, Nagendra Sah vs. State of Bihar, reported in (2021) 10 SCC 725, Shivaji Chintappa Patil vs. State of Maharashtra, reported in (2021) 5 SCC 626, Raja Naykar vs. State of Chhattisgarh, reported in (2024) 3 SCC 481 and Krishan Chander vs. State of Delhi, reported in (2016) 3 SCC 108. 14. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the trial Court with utmost circumspection and carefully as well. 15. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 16. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased were homicidal in nature ? 17. The trial Court, relying upon the statement of Dr. Geeta Pradhan (PW-6), who has conducted postmortem on the bodies of deceased, vide Exs.P/20, P/21 & P/22, has clearly come to the conclusion that the cause of death of the deceased are excessive bleeding due to the cutting of major blood vessels in the neck and the nature of death were homicidal. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to 10 record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellant. We hereby afÏrm the said finding. 18. The next question for consideration would be, whether the trial Court has rightly held that the appellant is author of the crime by relying upon the following circumstances:- (i) Homicidal death was proved by the prosecution as per postmortem reports (Exs.P/20, P/21 & P/22) of Dr. Geeta Pradhan (PW-6) who conducted postmortem. (ii) As per the case of the prosecution, the fact of death of deceased was within the knowledge of the appellant, however, there was no any explanation given by the appellant in his statement under Section 313 of the Cr.P.C. Thus, burden of proof was on the appellant to explain such circumstance, which he failed to explain. 19. Now, the question would be, whether Section 106 of the Evidence Act would be applicable or not? 20. Section 106 of the Indian Evidence Act, 1872, 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.” 21. 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 the general rule governing burden of proof applies only to such matters of defence which are supposed to be 11 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. 22. In the matter of Shambhu Nath Mehra v. The State of Ajmer1, their Lordships of the Hon’ble 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 difÏcult, for the prosecution, to establish facts which are “especially” within the knowledge of the accused and which he could prove without difÏculty 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 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 1 AIR 1956 SC 404 12 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. 23. The decision of the Hon’ble Supreme Court in the matter of Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar2 in which it has been held by their Lordships of the Hon’ble 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, 2 (2021) 10 SCC 725 13 falsity of the defence is no ground to convict the accused.” 24. Similarly, the Hon’ble Supreme Court in the matter of Gurcharan Singh v. State of Punjab3, 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. 25. The principle of law laid down by their Lordships of the Hon’ble Supreme Court in the matter of Gurcharan Singh (supra) has been followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar4 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. 26. In the present case, cause of death of the deceased are excessive bleeding due to the cutting of major blood vessels in the neck and the nature of death were homicidal and the use of pointed object has not been 3 AIR 1956 SC 460 4 AIR 1974 SC 778 14 substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Dr. Geeta Pradhan (PW-6) and the postmortem reports (Exs.P/20, P/21 & P/22) that the death of deceased were homicidal in nature. 27. As regards complicity of the appellant in crime in question, conviction of the appellant is substantially based on the evidence of Dr. Geeta Pradhan (PW-6). 28. Dr. Geeta Pradhan (PW-6), who conducted the postmortems of the deceased vide Exs.P/20, P/21 & P/22 found the injuries as stated in paragraph 05 of this appeal and she opined that the cause of death of the deceased are excessive bleeding due to the cutting of major blood vessels in the neck and the nature of death were homicidal. 29. The accused mother, Zubaida Begum (PW-1), father, Noor Khan (PW-3), brother, Asraf (PW-4), and Asraf's wife, Firoza Begum (PW-3), stated in their deposition that they all lived in the same house, both the sons, Amjad Khan and Asraf, living with their families in separate rooms. The family's living arrangement was such that the parents would take lunch at the younger son Asraf's house and dinner at the elder son Amjad's house. On the night of the incident, the parents had their dinner at Amjad's house, where Amjad was present, and his wife Sharifa served them food. Their children, Anjum Nisha and Aftab, were also there. After dinner, Amjad left, and the parents returned to their house to sleep. The next morning, Amjad's room was found open, and his wife Sharifa and their two children, Anjum Nisha and Aftab, were found lying in a pool of blood. Noor Khan (PW-3) went to the Chakarbhatha Police Station and 15 lodged an FIR (Ex.P/30), while Asraf (PW-4) informed other relatives, Hakim Khan (PW-7) and Nazir (PW-5). During cross-examination, the witnesses admitted that Amjad had left the house after dinner, and the gate was locked after he left. They also stated that Amjad's hand was broken two months prior to the incident, and he was unable to work or perform tasks like breaking the gate or wall. 30. Investigating OfÏcer, Mohd. Kalim Khan (PW-15) stated that Amjad was missing since morning, and he was found in the Chakarbhatha market around 8.00 p.m. on 10.08.2018. Amjad claimed to have consumed poison and was taken to the hospital for treatment. The Investigating OfÏcer prepared an application for medical examination of accused, Amjad Khan (Ex.P/36) and obtained a certificate from the Doctor stating that Amjad was unable to give a statement. He then applied for a memo with regard to recording dying declaration of accused, Amjad Khan (Ex.P/37) to be recorded by the Tehsildar. After obtaining the medical certificate, the Tehsildar recorded Amjad's dying declaration (Ex.P/29). The Investigating OfÏcer then took Amjad into custody and, in the presence of witnesses Noor Khan (PW-3) and Sheikh Hakim (PW-7), questioned him. Amjad revealed that he had hidden the knife used in the incident on the roof of the house. The Investigating OfÏcer recovered the knife (Ex.P/17) and arrested Amjad (Ex.P/15). He also informed Amjad's father about the arrest (Ex.P/18). Regarding the recovered knife, the Investigating OfÏcer sent a query (Ex.P/39) to the Doctor. After the postmortem examination, the Doctor handed over the victims' clothes to the Constable, which were seized (Ex.P/35). The Investigating OfÏcer sent the seized items, including the knife, clothes, and a chadar, to the 16 Forensic Science Laboratory for examination through a memo (Ex.P/31). The FSL report is Ex.P/40. 31. Head Constable Radhelal Dhruv (PW-11) certified that the FIR (Ex.P/30) was lodged by Noor Khan (PW-3) at the Police Station on 10.08.2018, at about 8.00 a.m. During cross-examination, he denied that he had raised the suspicion against Amjad Khan in the FIR (Ex.P/30), on his own. 32. Dr. Devesh Kumar Pradhan (PW-13), the Doctor who performed the medical examination of the accused Amjad Khan, stated that Amjad Khan was presented before him on 10.08.2018. Dr. Pradhan cleaned Amjad's stomach and provided a medical report, Ex.P/33, along with a certificate, Ex.P/34, regarding Amjad's ability to give a dying declaration. Subsequently, Tehsildar Prakash Chand Sahu (PW-10) recorded Amjad Khan's dying statement at 10:40 p.m., immediately after the medical examination at 9:25 p.m., as shown in Ex.P/29. In his statement, Amjad Khan admitted to consume pesticide and explained that he did so because “he had killed his wife and two children, so he also wanted to die.” The prosecution has presented this statement as a crucial piece of evidence. 33. Notably, the accused Amjad Khan is alive, which makes the aforementioned statement extremely weak as evidence under Section 32 of the Indian Evidence Act, 1872. This is because the principles governing the admissibility of dying declarations no longer apply in this case. 34. Even if the statement is considered a confession by the accused Amjad Khan, it can still be considered weak type evidence according to 17 the precedents presented by the defence. This is because the prosecution’s evidence itself makes it clear that the statement was not recorded by a Judicial Magistrate and does not fulfill the requirements of Section 164 of the Cr.P.C. Additionally, considering the principles of extra- judicial confession and other provisions, the Indian Evidence Act of 1872, Sections 24-27, suggest that the Police were present around Amjad Khan while recording the alleged statement. Therefore, even if Ex.P/29 is excluded, this alone is not enough to completely disregard the prosecution’s case, and it is necessary to examine other available evidence. 35. Now, examining the FIR (Ex.P/30) lodged by the father of the accused, Noor Khan (PW-3), at Chakarbhata Police Station, Noor Khan suspected his son Amjad Khan of murdering his wife, Sharifa Begum, and their children, Anjum Nisha and Aftab Khan, given the circumstances before and after the incident. It appears that his son Amjad Khan murdered his wife, daughter, and son with a sharp-edged weapon and fled away. Similarly, mother of the accused and wife of Noor Khan, Zubaida Begum (PW-1), also stated in her case diary statement (Ex.P/1) that “Amjad himself murdered his wife and children and escaped by jumping over the wall.” Amjad Khan's brother, Ashraf (PW-4), and his wife, Firoza Begum (PW-2), also expressed suspicion on Amjad Khan in their case diary statements. 36. The present case is not of direct evidence, no person has seen accused Amjad Khan committing the alleged crime. On the basis of the doubt expressed by the above witnesses, in the further investigation, accused Amjad Khan was found to be the culprit, but before the learned 18 trial Court, these four witnesses denied the alleged doubt and tried to tell that on the night just before the incident, Noor Khan (PW-3) and his wife Zubaida Begum (PW-1) had eaten food at the house of accused Amjad. According to the prosecution case, after having meal, the husband and wife went home and accused Amjad Khan was with his wife and children, but the parents, brother & sister-in-law of accused Amjad Khan have tried to bring out in the cross-examination conducted on behalf of accused Amjad Khan that accused Amjad Khan had left the house after eating in front of his parents and thereafter, left the house, the outer gate was locked and the boundary wall of their house is six feet high, it was not possible for accused Amjad Khan to climb it and come back, because one of his hands was broken two months ago. Further, the statements of Investigating OfÏcer, Mohd. Kalim Khan (PW-15) and Amjad Khan's relative Sheikh Hakim (PW-7) also reveal that Amjad Khan's hand was previously fractured. However, despite the admissions made by Amjad Khan's parents, brother and sister-in-law during cross-examination, it is noteworthy that according to the statements of all these witnesses, the bodies of Amjad Khan's wife Sharifa Begum, daughter Anjum Nisha, and son Aftab were found in a room within the house of Noor Khan (PW-3). 37. The map of the said house of complainant, Noor Khan (PW-3) has been prepared as Ex.P/14 by Patwari K.K. Pathak (PW-8) and Investigating OfÏcer, Mohd. Kalim Khan (PW-15) himself, who reached the spot immediately after the incident. The defence has not taken any contrary facts regarding the condition of the house and rooms of Noor Khan (PW-3) shown in both the maps. Even Noor Khan (PW-3) has stated that the Patwari map Ex.P/14 and the map prepared by the Police 19 (Ex.P/7) were prepared in his presence. The same incident spot is shown in both the maps. As shown in the map at Exs.P/14 & P/7 and in the room where the parents of accused Amjad Khan, namely, Zubaida Begum (PW-1), Noor Khan (PW-3), brother Ashraf (PW-4) and brother's wife Firoza Begum (PW-2) and other relatives of accused Amjad Khan namely Nazir Khan (PW-5) and Sheikh Hakim (PW-7) stated that the bodies of the three deceased were found, entry of any person other than the family members into that room is possible only when he enters the courtyard of the house of the complainant, Noor Khan, then the hall of the house and thereafter, into the room of accused Amjad Khan. The house is small, all other rooms are attached and it is clear from the evidence of close relatives of accused Amjad Khan that when the incident taken place, the other four adult members of the house, parents, brother and sister-in-law of accused Amjad Khan were present in the house. In the presence of such four adult members, the defence raised that some other person entered and caused the incident does not seem to be acceptable. 38. Learned counsel for the appellant has tried to bring the ground that the appellant has been implicated in the present case instead of the actual murderer, but this defence seems baseless, because why would any other third person kill three innocent people in this manner? That too by choosing the exact day on which the accused Amjad would go out of the house after having dinner and despite the accused Amjad Khan going out at night, the parents locked the house without enquiring as to where and why the accused was going, whether he will return or not. This defence also seems to be not acceptable because almost all the main witnesses are close relatives of the accused, but neither did they explain nor did the 20 accused Amjad Khan produce any defence as to why on the very day of his absence, a third person would enter the house and kill the wife and children of accused Amjad Khan ? Did the accused Amjad Khan have any enmity with anyone or was there any money or expensive jewellery etc. kept in his room? Which someone wanted to rob. The kind of house it is, it seems impossible for a third outsider to enter, because if a third outsider opens the closed door and enters, there will be a commotion, if he uses a sharp weapon on three people, there will be a sound of screaming and shouting, which will definitely reach the other rooms of the small house. 39. As per the kind of evidence available on record and as stated by the parents, brother and sister-in-law of accused Amjad Khan, the three innocent people have been murdered calmly and without any screaming and this is possible only when such a person is either already available in the room or whose presence in the room does not pose any threat to the deceased and in his presence, they can sleep peacefully, because it is possible to slit the throats one by one only in deep sleep. The injuries found on the bodies of all three are those of slitting the throats. If the throat of a sleeping person is slit, it is not necessary that the other sleeping person should know about it, because in such a situation it is not possible to scream. The throats of all the three were slit one by one while they were sleeping peacefully. 40. The close relatives of the accused i.e. Mother of the accused, Zubaida Begum (PW-1), Father Noor Khan (PW-3), brother Ashraf (PW- 4) and Ashraf's wife Firoza Begum (PW-2) are trying to break the last seen theory of the prosecution and stated that after leaving the house, accused Amjad Khan could not climb the boundary wall due to his broken 21 hand. This attempt of the witnesses and the defence of inability to climb the boundary wall due to broken hand and not being able to slit the throats of three people is not acceptable for two reasons, firstly because accused Amjad Khan's hand was broken two months ago, such a period is sufÏcient for recovery, no witness has said that plaster was tied or the said hand of the accused was completely damaged. Secondly, in this case, the prosecution does not have to prove how the accused climbed into the closed door despite having a broken hand. Rather, the accused Amjad Khan is taking a plea of alibi stating that he was outside the house at the time of the incident. Therefore, the accused Amjad Khan had to prove that he could not climb due to the broken hand, but he has not even presented any medical evidence in this regard. Apart from this, the statement of the accused and his close relatives that the accused Amjad Khan went out of the house after having dinner and after he went out, the parents locked the house is also not acceptable, because if a person goes outside of the house at night, then definitely the people of the house will wait for his return and will lock the house when he returns. Further, it is also not a case that the accused was going out to some such place or for such work that it was certain that he would not return. 41. Thus, given the nature of the crime, where three people were murdered by slitting their throats in presence of four other adult family members within the house, the provisions of Section 106 of the Indian Evidence Act, 1872, become relevant. According to this section, when a fact is within the special knowledge of a person, the burden of proving that fact lies on that person. Similarly, when a crime occurs within a house, it becomes the responsibility of the household members to explain how the 22 crime occurred, as per the aforementioned provision of the Indian Evidence Act, 1872. However, Amjad Khan and his family members have failed to provide any clarification in this regard, and the entire family remains silent. Moreover, the family is also silent on the fact that if Amjad Khan was not in the house, then where was he? 42. Now, the question is, whether the prosecution has discharged its initial or general burden or primary duty of proving the guilt of the accused beyond reasonable doubt? 43. From the above circumstances, it is clear that all the family members are trying to save the accused Amjad Khan, but every circumstance of the case strongly indicates that Amjad Khan himself murdered his wife and children. He had a motive to commit the murder, as all the witnesses have stated that he was financially troubled and had become dependent on his father. Although the prosecution recorded the memorandum statement of the accused regarding the seizure of the weapon used in the incident (Ex.P/16) and seized the knife (Ex.P/17) on his identification, as well as the bed-sheet from the crime scene (Ex.P/6) and the clothes recovered from the victims’ bodies after their postmortem (Ex.P/35), and sent these items to the Forensic Science Laboratory (FSL) for examination, the Police also obtained a report (Ex.P/40) from the FSL. Dr. Geeta Pradhan (PW-6) stated in her test report (Ex.P/26) that it was possible that the victims’ deaths were caused by the knife presented before her. 44. The defence argued that none of the seized properties were presented before the learned trial Court, and there was no comparative 23 blood test available for any of the properties. However, this argument does not hinder the prosecution’s case, as other circumstantial evidence is available. Although the FSL report (Ex.P/40) only mentioned the presence of human blood, and there was no comparative blood test between the accused and the victims, and the clothes worn by the accused at the time of the incident were not seized, and the alleged knife was not presented before the learned trial Court, and Noor Khan (PW-3) did not support the seizure, the prosecution’s case remains unaffected. 45. From the analysis of the evidence presented by the prosecution, it is clear that Amjad Khan, driven by financial difÏculties, slit the throats of his wife Sharifa Begum, daughter Anjum Nisha, and son Aftab. The nature of the injuries inflicted by Amjad Khan on the three victims clearly indicate that he intended to kill them. Therefore, his actions do not fall under any other exception mentioned in Section 300 of the IPC. This proves that Amjad Khan killed his wife Sharifa Begum, daughter Anjum Nisha, and son Aftab with the intention of killing them. Consequently, the deaths of Amjad Khan's wife Sharifa Begum, daughter Anjum Nisha, and son Aftab constitute criminal homicide amounting to murder. The accused failed to provide any explanation for the circumstances that implicated him in the crime. The prosecution successfully proved the facts of the case through reliable evidence, establishing the guilt of the accused beyond reasonable doubt, it is clearly and reliably established that it was the accused/appellant, who caused the death of the deceased and in this regard, there is no defence on the part of the accused/appellant during his examination under Section 313 of the Cr.P.C., and therefore, we are of the considered opinion that the prosecution has proved its case beyond 24 reasonable doubt and the trial Court has rightly convicted the accused/appellant for the offence punishable under Section 302 (three counts) of the IPC. Therefore, we do not find any illegality or irregularity in the findings recorded by the trial Court. 46. For the foregoing reasons, the criminal appeal being devoid of merit is liable to be and is hereby dismissed. 47. It is stated at the Bar that the appellant is in jail, he shall serve out the sentence as ordered by the learned trial Court. 48. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 49. Let a certified copy of this judgment along with the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Brijmohan