JUDGMENT : Ambuj Nath, J: This appeal is directed against the judgment of conviction dated 18.05.2022 and order of sentence dated 21.05.2022, passed by Shri Radha Krishan, Additional Sessions Judge-1 st -cum-Special Judge-cum-FTC, Ramgarh in S.T. Case No. 10 of 2017 arising out of Patratu (Bhurkunda) P.S. Case No. 261 of 2016 corresponding to G.R. No. 1068 of 2016, holding the appellant Alok Kumar Behera guilty for the offences under sections 302 and 498-A of the Indian Penal Code and thereby sentencing him to undergo imprisonment for life along with a fine of Rs. 5,00,000/- for the offence under section 302 of the Indian Penal Code. In default of payment of fine, he was further directed to undergo R.I for four years. He has been further sentenced to undergo R.I for three years along with a fine of Rs. 20,000/- for the offence under section 498- A of the Indian Penal Code. In default of payment of fine, he was further directed to undergo R.I for nine months. Both the sentences were ordered to run concurrently. 2. Prosecution case was instituted on the basis of a typed report of the Informant Madhusudan Mahunta, alleging therein that his daughter Kshirabdhi Tanaya Mahunta was married to the petitioner Alok Kumar Behera who was working as a Senior Manager in Birsa Mines of CCL. Their marriage was solemnized on 29.01.2005. The appellant had two children from the wedlock. After their marriage, there was demand of Rs. 5.00 lakh and other articles as dowry. To enforce the demand, Kshirabdhi Tanaya Mahunta was tortured. On 30.07.2016, the appellant Alok Kumar Behera assaulted the deceased, due to which, she went to her parental house. Subsequently, on 29.08.2016, at the request of the appellant, the Informant sent his daughter to her matrimonial home. On 17.09.2016 at about 5.30 a.m., granddaughter of the Informant called him and informed him that her mother has been murdered by the appellant. Accordingly, First Information Report was registered. 3. After investigation, police found the occurrence to be true and submitted charge sheet against the appellant under section 302/120-B/498-A of the Indian Penal Code. Cognizance was taken by the court of Shri Prem Shanker, learned Judicial Magistrate, 1 st Class, Ramgarh under the aforesaid sections. Case was committed to the court of sessions on 05.01.2017, as the case was exclusively triable by the court of Sessions. Cognizance was taken by the court of Shri Prem Shanker, learned Judicial Magistrate, 1 st Class, Ramgarh under the aforesaid sections. Case was committed to the court of sessions on 05.01.2017, as the case was exclusively triable by the court of Sessions. Charge was framed against the appellant under section 302, 120-B and 498-A of the Indian Penal Code on 15.02.2017. Contents of charge was read over and explained to the appellant in Hindi, to which he pleaded not guilty and claimed to be tried. 4. In order to prove its case, the prosecution has adduced both oral and documentary evidence. Niwas Prasad Singh (P.W-1) is the neighbour of the appellant. He has stated that he had gone to the house of the appellant on hulla and saw the dead body of the deceased. Anil Kumar (P.W-2) is a hearsay witness. He has stated that on hulla, he went to the house of the appellant and saw the dead body of the deceased. Bipin Bihari Samal (P.W-3) is also a hearsay witness. He has proved his signature on the seizure list which has been marked as Ext.-1. He has been declared hostile. Anshuman Mohanta (P.W-4) is a hostile witness. Akansha Behra (P.W-5) is the daughter of the deceased. She has stated that on 16.09.2016, she was sleeping with her brother and mother in another room. In the morning, when her father raised alarm, she came to the dining hall and saw her mother lying in a pool of blood. She was dead. She called the neighbours and informed them about the occurrence. She has been declared hostile. Aayushman Behera (P.W-6) is the son of the appellant and the deceased. He has stated that on 16.09.2016 in the morning at 6.30 a.m., he saw his mother lying in pool of blood and his father was also lying there in unconscious position. His mother was murdered. He has also been declared hostile. Ratnamanjhari Raut (P.W-7) is the mother of the deceased. She has stated that the deceased Kshirabdhi Tanaya Mahunta was married to the appellant Alok Kumar Behera in 2005. They have a son and a daughter from their wedlock. She has further stated that the relationship between her daughter and her son-in-law was good. She has further stated that on 17.09.2016, her granddaughter informed her that her daughter has been murdered. She went to the matrimonial house of the parties. They have a son and a daughter from their wedlock. She has further stated that the relationship between her daughter and her son-in-law was good. She has further stated that on 17.09.2016, her granddaughter informed her that her daughter has been murdered. She went to the matrimonial house of the parties. She has also stated that she has not seen the dead body of her daughter. She has been declared hostile. This witness was again recalled for re-examination in which she has produced the photocopy of a letter written by the deceased to the Officer-in- Charge, Bhurkunda Police Station, which has been marked as Ext.-9. She has also produced a translated computer typed copy of the aforesaid letter, which has been marked Ext.-10. In her cross-examination, she has stated that the earlier statement given by her in her examination-in-chief was not correct as she was not in good mental health. Madhusudan Mahunta (P.W-8) is the father of the deceased. He has stated that his daughter was married to Alok Kumar Behera on 29.01.2005. He has further stated that the relationship between his daughter and son-in-law was good. He has further stated that on 16.09.2016, his granddaughter Akansha Behra told him about the occurrence. When he came to Bhurkunda, he found the dead body of her daughter lying in a coffin. He has been declared hostile. Ashok Kumar (P.W-9) is the Investigating Officer of this case. He has proved the place of occurrence. He has given vivid description of the place of occurrence. He has stated that the dead body of the deceased was lying in dining hall and beside the dead body, the appellant was lying unconscious. A knife was also lying there. He has proved the formal FIR, which is Ext.-3. He has proved the signature of the witnesses on the seizure list which are Ext.-1 series. He has proved the seizure list regarding the blood stained shirt of the appellant which has been marked Ext.-4. He has proved the carbon copy of the forwarding of the knife and bloodstained shirt of the appellant which are Ext.-6 series. In his cross-examination, he has stated that he has not investigated, whether the knife which was recovered from the place of occurrence, was the knife used in the kitchen of the appellant or whether, any outsider had committed the murder and left the knife at the place of occurrence. In his cross-examination, he has stated that he has not investigated, whether the knife which was recovered from the place of occurrence, was the knife used in the kitchen of the appellant or whether, any outsider had committed the murder and left the knife at the place of occurrence. He has also stated that he has not taken fingerprint from the murder weapon. Dr. Mahendra Prasad Choudhary (P.W-10) is the doctor who has performed postmortem on the dead body of the deceased and found the following injuries on the person of the deceased. “ External Examination (i) Hair is black and long (ii) Both eyes opened (iii) Nose-nothing present. Injuries (i) Dry blood present on face, neck and chest (ii) incised wound 4”x3”x cervical bone deep on left part of neck bloodstained and dark, red in colour. Blood vessels, nerve and neck muscles of left part of neck incised in two parts but intact (iii) incised wound 1”x ½ “x thoracic cavity deep on left breast. Bloodstained and dark, red in colour (iv) incised wound 1”x ¼ “x skin deep on right breast dark, red and bloodstained in colour (v) incised wound 1”x ¼”x skin deep on epigastric region of abdomen, bloodstained and dark, red in colour (vi) incised wound 1”x ¼” x deep on left part of abdomen, dark, red and bloodstained in colour (vii) incised wound 3”x1”x abdominal cavity deep on right lateral part of abdomen dark, red and bloodstained in colour. A loop of small intestine out from its cavity (viii) incised wound 2 ½” x 1” x abdominal cavity deep on abdomen near umbilicus bloodstained and dark, red in colour. A loop of large intestine out from its cavity (ix) incised wound 1”x1”x abdominal cavity deep on left part of abdomen (x) incised wound 1”x ¼” x skin deep open left shoulder bloodstain dark, red in colour. 2. All these injuries were antemortem in nature and caused by pointed and sharp cutting weapon. 3 . Internal Examination- (i) Trachea and esophagus incised in two parts but intact. (ii) Dark blood 03-ounce present in the thoracic cavity. (i) Both lungs intact and pale and left lobe of the lung incised. (ii) Both chambers of heart empty. (iii) Stomach wall incised and contains mucoid fluid 01 ounce and its mucosal wall normal. (iv) Liver intact, incised and pale. (v) Spleen intact incised and pale. (vi) Urinary bladder empty. (ii) Dark blood 03-ounce present in the thoracic cavity. (i) Both lungs intact and pale and left lobe of the lung incised. (ii) Both chambers of heart empty. (iii) Stomach wall incised and contains mucoid fluid 01 ounce and its mucosal wall normal. (iv) Liver intact, incised and pale. (v) Spleen intact incised and pale. (vi) Urinary bladder empty. (vii) Uterus nongravid and vagina normal (viii) Time elapsed since death within 36 hours.” He has proved the postmortem report which has been marked as Ext.-7. According to this witness, cause of death of the deceased was shock and hemorrhage, due to the above injuries caused by sharp cutting weapon. He has proved the postmortem report which is Ext.-7. From perusal of his oral testimony made in the court, it appears that the findings in the postmortem report fully corroborates his oral testimony made in the court. However, in his cross-examination at para-14, he has stated that the injury caused on the person of the deceased may be caused by different types of pointed and sharp cutting weapons and not only by single knife. Dr. Harendra Kumar Singh (P.W-11) is another doctor who has examined the appellant Alok Kumar Behera and has found the following injuries on his person. “I. Abrasion in the middle finger of left hand, semiconscious. II. Mode of injury-blunt object. III. Type of Injury – Simple. He has proved the injury report which is Ext.-8. It appears that the appellant has sustained abrasion in the middle finger of the left hand. He was semi-conscious. In his cross examination, he has stated that there can be many reasons for semiconsciousness, mental shock is also one of the reasons. He has proved the injury report which has been marked as Ext.-8. 5. Statement of the appellant was recorded under section 313 of the Cr. P.C. in which he has pleaded innocence. 6. The appellant has examined three witnesses in his defence. Gulam Rasool (D.W-1) has stated that on 16.09.2016, he was supervising the construction of Pandal. He was there from 9.30 p.m. onwards. At 12.00 a.m., Alok Behera went inside the mines to attend his duties. He has also put his signature in the muster roll register. He went to his house at 2.00 a.m. Till 2.00 p.m., he has not seen Alok Behera coming from mines. Appellant-Alok Kumar Behera has examined himself as D.W-2. He was there from 9.30 p.m. onwards. At 12.00 a.m., Alok Behera went inside the mines to attend his duties. He has also put his signature in the muster roll register. He went to his house at 2.00 a.m. Till 2.00 p.m., he has not seen Alok Behera coming from mines. Appellant-Alok Kumar Behera has examined himself as D.W-2. He has proved several documents in evidence. From perusal of oral testimony of the appellant, it appears that he has admitted his marriage with the deceased Kshirabdhi Tanaya Mahunta. He has stated that on 17.09.2016 at 5.00 a.m., he left his duty and reached home at 5.45 a.m. He saw blood drops near his gate. When he went inside, he saw his wife lying in pool of blood. On seeing his wife, he fainted. He was taken to the hospital where police later arrested him. He has also stated that on 16.09.2016, he joined his duty at 9.00 p.m. and went inside the mines at 12.00 a.m. Vinamra Jain (D.W-3) has stated that he is the Senior Manager in the office of General Manager, Badka Sayal Colliery. He has proved the Form-C i.e. the Duty Register in the Court. He has stated that on 16.09.2016, the appellant was present in his duty from 12.00 a.m. to 5.00 a.m. He has proved the Attendance Register which has been marked Ext.-I. He has further proved the entries made in the Attendance Register which is Ext.-J. He has further proved his signature and entries made in column-18 and 19 of the Attendance Register which has been marked Ext.-K. In his cross-examination, he has stated that he had seen the appellant Alok Behera outside the mines between 11.30 p.m. to 12.00 a.m. He has further stated that the entries made in column-18 and 19 of the Attendance Register with respect to the time is not specific, whether it is in the evening or morning. 7. Prosecution has adduced the following documents in evidence. Signature of P.W-3 and P.W-8 has been marked Ext.1 series. Signature of P.W-8 on the written report and forwarding and endorsement in the written report has been marked Ext.-2 series. Formal F.I.R. has been marked Ext.3 series. Seizure list of blood-soaked shirt has been marked Ext.-4. Arrest Memo of the accused Alok Kumar Behera has been marked Ext.- 6 series. Signature of P.W-3 and P.W-8 has been marked Ext.1 series. Signature of P.W-8 on the written report and forwarding and endorsement in the written report has been marked Ext.-2 series. Formal F.I.R. has been marked Ext.3 series. Seizure list of blood-soaked shirt has been marked Ext.-4. Arrest Memo of the accused Alok Kumar Behera has been marked Ext.- 6 series. Carbon copy of letter sent to the Director F.S.L, Ranchi having the signature of Shri Prem Shankar, the then Judicial Magistrate, 1 st Class, Ramgarh has been marked Ext.6 series. Postmortem report has been marked Ext.7. Injury report of the accused Alok Kumar Behera has been marked Ext.-8. Letter dated 29.08.2016 written by the deceased Kshirabdhi Tanaya Mahunta @ Lucy Behera has been marked Ext.-9. Hindi Translation of the aforesaid letter has been marked Ext.10. F.S.L. report has been marked Ext.11 Certified copy of the sale deed no. 3520/2006 dated 10.09.2006 has been marked Ext.12. 8. Appellant has also adduced documentary evidence in support of his case. Ext.-A is the birth certificate of Akansha Behera. Ext.-B is the birth certificate of Ayushman Behera. Ext.-C is the owner book of the vehicle no. JH 01K 1163. Ext.-D series are two money receipts of Fairdeal Hyundai. Ext.-E series are the annual property returns for the year 2013 and 2021. Ext.-F series are the attested copies of passbook of A/c No. 4567010100019998 and A/c No. 11663155290. Ext.-G series are eight cash deposit slips of SBI Lapanga Branch. Ext.-H is the absentee report on 16.09.2016 issued on 23.03.2022. Ext.-I is the column 18 and 19 of attendance register of Sayal ‘D’ Urimari Underground Colliery dated 16.09.2016. Ext.-J is the Column 16 and 17 of attendance register of Sayal ‘D’ Urimari Underground Colliery dated 15.09.2016. Ext.-K is the signature of D.W-3 in column no. 18 and 19 of attendance register. 9. On the basis of the evidence – both oral and documentary – available on the record, learned Trial Court held the appellant guilty and sentenced him accordingly. 10. Learned counsel appearing on behalf of the appellant has submitted that none of the prosecution witnesses have supported the prosecution case. He has also submitted that the learned Trial Court has sentenced the appellant on the basis of the documents which were inadmissible in evidence. 10. Learned counsel appearing on behalf of the appellant has submitted that none of the prosecution witnesses have supported the prosecution case. He has also submitted that the learned Trial Court has sentenced the appellant on the basis of the documents which were inadmissible in evidence. He has also submitted that the appellant at the time of occurrence was attending his duty which has been proved by the defence witnesses. It was also submitted that the learned Trial Court has also held the appellant accountable under section 106 of the Indian Evidence Act as he has failed to explain the murder of his wife in his house. Learned counsel has placed reliance upon the decision of the Hon’ble Supreme Court in the case of Satye Singh and Another versus State of Uttarakhand reported in [ (2022) 5 SCC 438 ], wherein the Hon’ble Supreme Court has held that section 106 of the Indian Evidence Act is not intended to relieve the prosecution from discharging its duty to prove guilt of accused. Prosecution must discharge its primary onus of proof and establish the basic facts against the accused in accordance with law. Only thereafter, section 106 of the Indian Evidence Act can be restored depending on the facts and circumstances of each case. 11. On the aforesaid grounds, it was prayed that the impugned judgment of conviction and order of sentence passed by the learned Trial Court be set aside. 12. Mr. Abhay Kumar Tiwari, learned A.P.P., assisted by Mr. Sanjay Kumar Pandey, learned counsel appearing on behalf of the Informant, submitted that the prosecution has been able to show that since the deceased died in her matrimonial home, it was the duty of the appellant to explain the circumstances behind her death. It was further submitted that the appellant has not been able to discharge his burden imposed upon him under section 106 of the Indian Evidence Act. It was further submitted that the deceased had written a letter to the Officer-in-Charge, Bhurkunda Police Station alleging that the appellant used to torture her and she has serious apprehension of danger to her life. On these grounds, it was submitted that the learned Trial Court has rightly held the appellant guilty and the sentence imposed upon him is commensurate with the gravity of the offence and does not require any interference. 13. On these grounds, it was submitted that the learned Trial Court has rightly held the appellant guilty and the sentence imposed upon him is commensurate with the gravity of the offence and does not require any interference. 13. Now, it has to be ascertained, whether the prosecution has been able to prove its case beyond all reasonable doubt? In order to come to the aforesaid findings, it has to be further ascertained, (i) Whether the deceased Kshirabdhi Tanaya Mahunta died homicidal death? (ii) Whether the appellant Alok Kumar Behera had caused her homicidal death? 14. Now, it has to be ascertained, whether the deceased Kshirabdhi Tanaya Mahunta died homicidal death? From perusal of the postmortem report, it transpires that the doctor (P.W-10) has found ten incised wounds on the person of the deceased. All these injuries were antemortem in nature caused by pointed and sharp cutting weapon. In his cross-examination, he has stated that the injuries found on the person of the deceased might have been caused by different types of pointed and sharp cutting weapon and not only by one knife. From perusal of the aforesaid evidence, it is evident that the injuries found on the person of the deceased neither appears to be accidental, nor self- inflicted. In fact, the deceased was assaulted by more than one sharp-cum- pointed weapon. Accordingly, we come to the finding that the deceased had died homicidal death. 15. As far as the complicity of the appellant in committing murder of Kshirabdhi Tanaya Mahunta is concerned, there is no eyewitness to the occurrence. In fact, all the prosecution witnesses including the children of the appellant and the deceased have not supported the prosecution case and they have been declared hostile. Subsequently, mother of the deceased Ratnamanjhari Raut (P.W-7) in her re-examination, has stated that the appellant used to torture the deceased for dowry. She has also exhibited photocopy of the letter written by the deceased addressed to the Officer-in-Charge of Bhurkunda Police Station, in which she has made certain allegation against the appellant. She has also adduced computerized translated typed copy of this letter. The original letter of the deceased has not been brought on the record. No ground work has been laid as to why, photocopy of this letter has been adduced in evidence by way of secondary evidence. Accordingly, these documents cannot be read in evidence against the appellant. 16. She has also adduced computerized translated typed copy of this letter. The original letter of the deceased has not been brought on the record. No ground work has been laid as to why, photocopy of this letter has been adduced in evidence by way of secondary evidence. Accordingly, these documents cannot be read in evidence against the appellant. 16. Now, the only material against the appellant is that his wife was found murdered in his house and his shirt was stained with blood. As per the provisions of section 106 of the Indian Evidence Act, onus lies on the appellant to explain her death. 17. By way of defence evidence, the appellant has been able to show that he was on his duty in the night of 16.09.2016 and he left his duty on 17.09.2016 at 5.00 a.m. The postmortem of the deceased was conducted on 17.09.2016 at 2.50 p.m. Time of death of the deceased at the time of the postmortem has been said to be within 36 hours i.e. the deceased could have been murdered between the period from 2.00 p.m. on 16.09.2016 to 5.45 a.m. on 17.09.2016, when her dead body was found. From perusal of the statement Aayushman Behera (P.W- 6) who is the son of the deceased and the appellant, it transpires that he has stated that in the night of occurrence i.e. 16.09.2016, his father was not present in the house. He slept between 8.00 to 9.00 p.m., at 6.00 o’clock when he woke up, he saw the dead body of his mother and his father was lying beside the dead body in unconscious condition. He has stated that at the time when he went to sleep, his mother was alive. So, the deceased could have been murdered between 9.00 p.m. to 5.45 a.m. in the morning. 18. Defence witnesses have stated that the appellant was on duty at that time. Documentary evidence by way of entry made in the Attendance Register has been adduced as defence evidence which suggest that the appellant was on duty. The appellant has left his duty at 5.00 a.m. It is evident from the time of death of the deceased that the death could have taken place at 5.45 a.m. and the appellant had the opportunity to commit murder of his wife. The appellant has left his duty at 5.00 a.m. It is evident from the time of death of the deceased that the death could have taken place at 5.45 a.m. and the appellant had the opportunity to commit murder of his wife. However, from perusal of the testimony of the doctor (P.W-10), it appears that he has stated that the injuries found on the person of the deceased might have been caused by different pointed and sharp cutting weapons and not only by one knife. The testimony of the doctor (P.W-10) manifests that there could be more than one assailant. The Investigating Officer has not made investigation on this point. The appellant has been able to show that he was on duty in the night till morning when his wife was murdered. He has also stated that he found blood near the gate of his house, He has not been cross examined on this point. The appellant was lying unconscious besides his wife this explains his blood stained shirt. In view of the statement of the doctor (P.W-10) and the fact that the appellant was on duty at the time of the murder of his wife, we are of the opinion that the appellant has prima facie been able to explain the murder of his wife, which may have been caused by several outsiders. 19. As such, we come to the finding that though, wife of the appellant Kshirabdhi Tanaya Mahunta was murdered, but the prosecution has not been able to prove that it was the appellant who had committed her murder. 20. Accordingly, the impugned judgment of conviction dated 18.05.2022 and order of sentence dated 21.05.2022 passed by the learned Additional Sessions Judge-1 st -cum-Special Judge-cum-FTC, Ramgarh is hereby set aside. This appeal is allowed. The appellant is in custody. He is directed to be released forthwith, if not wanted in any other case. 21. Pending I.A., if any, also stands disposed of.