(Cr.A.No.825/2016) 2025:CGHC:52908-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 825 of 2016 {Arising out of judgment dated 22-6-2016 in Sessions Trial No.38/2016 of the 2nd Additional Sessions Judge, Janjgir} Purnesh Kumar Dhiwar @ Dokesh, S/o Atmaram Dhiwar, Aged about 30 years, R/o Village Dongakahrod, P.S. Pamgarh, Presently residing at Bhojpur, P.S. Champa, District Janjgir-Champa, Chhattisgarh. ... Appellant versus State of Chhattisgarh, Through Police Station Champa, District Janjgir- Champa, Chhattisgarh. ... Respondent For Appellant : Mr. Sumit Singh and Ms. Vaishali Jaiswani, Advocates. For Respondent : Mr. Ashish Shukla, Additional Advocate General and Mr. H.A.P.S. Bhatia, Panel Lawyer. Division Bench: - Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Sanjay Kumar Jaiswal, JJ. Judgment On Board (30/10/2025) Sanjay K. Agrawal, J. 1. Invoking the criminal appellate jurisdiction of this Court under Section 374(2) of the CrPC, the sole appellant herein/accused has preferred this appeal calling in question legality, validity and correctness of the impugned judgment & order dated 22-6-2016 in Sessions Trial No.38/2016 of the 2nd Additional Sessions Judge, SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2025.10.31 17:40:51 +0530 (Cr.A.No.825/2016) Janjgir, by which he has been convicted for offence under Section 302 (two times) of the IPC and sentenced to undergo imprisonment for life (two times) & pay a fine of ₹ 5,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for 6 months, with a direction that both the sentences shall run concurrently. 2. Case of the prosecution, in short, as projected by the prosecution is as under: - 3. The appellant herein used to live along with his wife deceased Smt. Khushi Dhiwar (D-1) in the tenanted premises owned by Biharilal Yadav (PW-1) & Santoshi Bai (PW-3) and deceased Pawan Dhiwar (D-2) has helped the appellant to get the tenanted accommodation from Biharilal Yadav (PW-1) & Santoshi Bai (PW-3). It is further admitted fact that the appellant and Pawan Dhiwar (D-2) both were related to each other. 4. It is the further case of the prosecution that on 27-10-2015 at 11.30 p.m., at Village Bhojpur, Amraiyapara, Champa, Police Station Champa, District Janjgir-Champa, the appellant murdered his wife Smt. Khushi Dhiwar (D-1) & Pawan Dhiwar (D-2) by wooden plank by causing injury on head and thereby committed the offence. It is also the case of the prosecution, as projected in the FIR, that in the tenanted house in question the appellant and his wife Smt. Khushi Dhiwar (D-1) used to live together as tenants and soon after the incident in question, Biharilal Yadav (PW-1) saw the dead bodies of (Cr.A.No.825/2016) the deceased persons inside the house where D-1 and the appellant used to live together and also saw the appellant running out from his premises in bicycle, and on enquiry, the appellant informed him that he is going for some urgent work which created suspicion in the mind of Biharilal Yadav (PW-1) whereupon he peeped inside the house of the appellant and saw the dead body of Smt. Khushi Dhiwar (D-1), however, Pawan Dhiwar (D-2) was alive lying in pool of blood. Biharilal Yadav (PW-1) called 108 ambulance and took them to Government B.D.M. Hospital at Champa where they were declared dead. Merg intimation relating to death of Smt. Khushi Dhiwar (D-1) was recorded vide Ex.P-1 and merg intimation relating to death of Pawan Dhiwar (D-2) was recorded vide Ex.P-15. Inquest was conducted on the dead body of deceased Smt. Khushi Dhiwar (D-1) vide Ex.P-4 as also on the dead body of deceased Pawan Dhiwar (D- 2) vide Ex.P-17. Crime details form Ex.P-7 was prepared by the Investigating Officer and spot map Ex.P-9 was prepared by the Patwari. Dead bodies of the deceased persons were subjected to postmortem and postmortem on the dead body of Smt. Khushi Dhiwar (D-1) was conducted by Dr. Manish Shrivastava (PW-5) vide Ex.P-11 who found antemortem internal head injury on her body and mode of death being syncope due to intensive antemortem injury, nature of death was homicidal. Similarly, postmortem on the dead body of Pawan Dhiwar (D-1) was conducted by Dr. Manish Shrivastava (PW-5) vide Ex.P-10 who found antemortem internal head injury on his body and mode of death being syncope due to (Cr.A.No.825/2016) intensive antemortem injury, nature of death was homicidal. The accused was arrested vide Ex.P-20 and jeans and t-shirt were seized from him vide Ex.P-6. Seized articles were sent for chemical examination to the Forensic Science Laboratory, Raipur vide Ex.P- 22. 5. Statements of the witnesses were recorded under Section 161 of the CrPC. After usual investigation, the accused/appellant was charge- sheeted for offence under Section 302 of the IPC and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions, District Janjgir-Champa from where the learned 2nd Additional Sessions Judge, Janjgir, received the case on transfer for trial. 6. The accused / appellant abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as twelve witnesses and exhibited 23 documents. The defence has examined one witness Santosh Bareth (DW-1) in its defence, but exhibited no document in support of its case. 7. The trial Court upon appreciation of oral and documentary evidence on record and considering the homicidal nature of death of the deceased persons and also considering that it is the appellant who has caused the murder of the deceased persons, proceeded to convict and sentence him under Section 302 of the IPC (two counts) in the manner mentioned in the opening paragraph of this judgment (Cr.A.No.825/2016) against which the instant appeal under Section 374(2) of the CrPC has been preferred. 8. Mr. 8. Mr. Sumit Singh, learned counsel appearing on behalf of the appellant, would submit that the trial Court has invoked Section 106 of the Indian Evidence Act, 1872 (for short, ‘the Evidence Act’), which is not applicable at all, as Biharilal Yadav (PW-1) & Santoshi Bai (PW-3) did not state that they had seen the appellant coming out from his premises and as such there is no evidence that the appellant & Smt. Khushi Dhiwar (D-1) were living together on the date and time of the offence. Therefore, the trial Court has committed legal error in applying Section 106 of the Evidence Act. Furthermore, seizure has been effected from the place of incidence and in view of the decision of the Supreme Court in the matter of Boby v. State of Kerala1, if the seizure is from the spot, the accused cannot be connected with the crime in question. As such, it is a case of no evidence, yet the appellant has been convicted by the trial Court by recording a finding which is totally perverse to the record and therefore, he is entitled for acquittal. 9. Mr. Ashish Shukla, learned Additional Advocate General appearing on behalf of the State/respondent, would oppose the appeal and support the impugned judgment and submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and therefore the trial Court is absolutely justified 1 (2023) 15 SCC 760 (Cr.A.No.825/2016) in convicting him for the murder of Smt. Khushi Dhiwar (D-1) & Pawan Dhiwar (D-2). 10. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record with utmost circumspection. 11. The trial Court upon appreciating oral and documentary evidence available on record and considering the postmortem reports Exs.P- 10 & P-11, which have been proved by Dr. Manish Shrivastava (PW- 5) in which cause of death of both the deceased persons was stated to be antemortem internal head injury and death to be homicidal in nature, rightly held that nature of death of both the deceased persons was homicidal. The finding recorded by the trial Court that death of deceased Smt. Khushi Dhiwar (D-1) & Pawan Dhiwar (D-2) was homicidal in nature, is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 12. Case of the prosecution is not based on direct evidence, it is based on circumstantial evidence and in a case based on circumstantial evidence, the prosecution was required to establish the five golden principles which constitute the panchsheel of a case based on circumstantial evidence as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra2 in which it has been held by their Lordships in paragraph 153 as under:- 2 (1984) 4 SCC 116 (Cr.A.No.825/2016) “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra3 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 13. Basically, the trial Court has invoked Section 106 of the Evidence Act. Therefore, before entering into the correctness of the finding recorded by the trial Court with the aid of Section 106, it would be appropriate to notice Section 106 and two relevant recently pronounced decisions of the Supreme Court in the matters of Balvir 3 (1973) 2 SCC 793 (Cr.A.No.825/2016) Singh v. State of Uttarakhand4 and Anees v. State Govt. of NCT5. 14. Section 106 of the Evidence Act provides 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.” 15. The question is, whether the trial Court has rightly invoked Section 106 of the Evidence Act? 16. In Balvir Singh (supra), their Lordships of the Supreme Court, reviewing their earlier decision on the point of Section 106 of the Evidence Act, have held that Section 106 has to be applied in criminal cases with care and caution, and observed in paragraphs 42 to 49 as under:- “42. 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. 43. Section 106 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 of 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 4 (2023) 16 SCC 575 5 2024 SCC OnLine SC 757 (Cr.A.No.825/2016) 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. 44. Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory. If in such a situation, the accused gives an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams: “All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence.” 45. To recapitulate the foregoing: What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof i.e. of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is therefore for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions. If the accused had a different intention that is a fact especially within his knowledge and which he must prove (see Professor Glanville Williams— The Proof of Guilt: A Study of the English Criminal Trial, Ch. 7, p. 127 and following) and the interesting discussion—para 527 negative averments and para 528—“require affirmative counter-evidence” at p. 438 and foil, of Kenny's Outlines of Criminal Law, 17th Edn. 1958. (Cr.A.No.825/2016) 46. But Section 106 has no application to cases where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happened to be present when it took place. From the illustrations appended to the section, it is clear that an intention not apparent from the character and circumstances of the act must be established as especially within the knowledge of the person whose act is in question and the fact that a person found travelling without a ticket was possessed of a ticket at a stage prior in point of time to his being found without one, must be especially within the knowledge of the traveler himself: see Section 106 of the Evidence Act, Illustrations (a) and (b). 47. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence which if believed by the court would convince them of the accused's guilt beyond a reasonable doubt, the accused is in a position where he should go forward with countervailing evidence if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might have been rebutted. Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution (Wharton's Criminal Evidence, 12th Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Leland v. State of Oregon6, Raffel v. United States7. What is “prima facie case” in the context of Section 106 of the Evidence Act? 48. The Latin expression prima facie means “at first sight”, “at first view", or "based on first impression". According, to 6 1952 SCC OnLine US SC 82 : 96 L Ed 1302 : 343 US 790 (1952) 7 1926 SCC OnLine US SC 156 : 70 L Ed 1054 : 271 US 494 (1926) (Cr.A.No.825/2016) Webster’s Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the charges against the defendant. If they cannot present prima facie evidence, or if an opposing party introduces contradictory evidence, the initial claim may be dismissed without any need for a response by other parties. 49. 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 death.” 17. Recently, in Anees (supra), their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the Evidence Act, have held in paragraphs 47 to 55 as under:- “47. But Section 106 of the Evidence Act has no application to cases where the fact in question, having regard to its nature, is such as to be capable of being known not only to the accused but also to others, if they happened to be present when it took place. The intention underlying the act or conduct of any individual is seldom a matter which can be conclusively established; it is indeed only known to the person in whose mind the intention is conceived. Therefore, if the prosecution has established that the character and circumstance of an act suggest that it was done with a particular intention, then under illustration (a) to this section, it may be assumed that he had that intention, unless he proves the contrary. 48. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence, which if believed by the court, would convince them of the accused's guilt beyond (Cr.A.No.825/2016) a reasonable doubt, the accused, if in a position, should go forward with counter-vailing evidence, if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might arise therefrom. Although not legally required to produce evidence on his own behalf, the accused may, therefore, as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution [See : Balvir Singh v. State of Uttarakhand, 2023 SCC OnLine SC 1261] ii. What is “ prima facie case ” (foundational facts) in the context of Section 106 of the Evidence Act? 49. The Latin expression prima facie means “at first sight”, “at first view”, or “based on first impression”. According to Webster's Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the case or charges against the defendant. If they cannot present prima facie evidence, the initial claim may be dismissed without any need for a response by other parties. 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. 51. The presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Page 13 of 18 (Cr.A.No.825/2016) 52. To explain what constitutes a prima facie case to make Section 106 of the Evidence Act applicable, we should refer to the decision of this Court in Mir Mohammad8, wherein this Court has observed in paras 36 and 37 respectively as under: “36. In this context we may profitably utilize the legal principle embodied in Section 106 of the Evidence Act which reads as follows:“When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.” (Emphasis supplied) 53. We should also look into the decision of this Court in the case of Ram Gulam Chaudhary v. State of Bihar, (2001) 8 SCC 311, wherein this Court made the following observations in paragraph 24 as under: “24. Even otherwise, in our view, this is a case where Section 106 of the Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and then a chhura-blow was given on the chest. Thus chhura-blow was given after Bijoy Chaudhary had said “he is still alive and should be killed”. The appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the appellants. The appellants have given no explanation as to what they did after they took away the body. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the court, there is every justification for drawing the inference that they had murdered the boy. 8 State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 : 2000 SCC (Cri) 1516 (Cr.A.No.825/2016) Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. We, therefore, see no substance in this submission of Mr. Mishra.” (Emphasis supplied) 54. Cases are frequently coming before the courts where the husband, due to strained marital relations and doubt as regards the character, has gone to the extent of killing his wife. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, like in the case at hand, even if he is a witness of the crime, would come forward to depose against another family member. 55. If an offence takes place inside the four walls of a house and in such circumstances where the accused has all the opportunity to plan and commit the offence at a time and in the circumstances of his choice, it will be extremely difficult for the prosecution to lead direct evidence to establish the guilt of the accused. It is to resolve such a situation that Section 106 of the Evidence Act exists in the statute book. In the case of Trimukh Maroti Kirkan9, this Court observed that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. The Court proceeded to observe that a Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character, which is almost impossible to be led, or at any rate, extremely difficult to be led. The duty on the prosecution is to lead such evidence, which it is capable of leading, having regard to the facts and circumstances of the case.” 18. Having noticed the provision contained in Section 106 of the Evidence Act and further having noticed the principles of law laid down by their Lordships of the Supreme Court qua Section 106, it 9 Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80 (Cr.A.No.825/2016) would be appropriate to consider the finding of the trial Court qua Section 106, as the trial Court has held that Biharilal Yadav (PW-1), Ramcharan (PW-2) & Santoshi Bai (PW-3), all three, have seen the appellant coming out from the house in question immediately after the incident and thereafter, suspecting upon the appellant, they had gone to the house of the appellant and saw that Smt. Khushi Dhiwar (D-1) was dead and Pawan Dhiwar (D-2) was seriously injured upon which they (deceased persons) were escorted to the hospital where Pawan Dhiwar (D-2) was declared dead. 19. 19. Biharilal Yadav (PW-1), who is landlord of the appellant, though in the FIR (Ex.P-2) has stated that after hearing noise/cry of Smt. Khushi Dhiwar (D-1) from the house of the appellant, he woke up and came out from the house and saw that the appellant was leaving the house and on enquiry, he stated that he was going out on some urgent work, then, he (Biharilal Yadav – PW-1) went to the house of the appellant and peeped into the house and saw that Smt. Khushi Dhiwar (D-1) was lying dead, however, in the statement before the Court, Biharilal Yadav (PW-1) did not support the case of the prosecution of seeing the appellant leaving the house in bicycle and has stated that some unknown person was going out in cycle and on suspicion, he went into the house of the appellant from back door and saw that Khushi (D-1) was dead and Pawan (D-2) was in injured condition in pool of blood, thereafter, Pawan was shifted to hospital where he was declared dead. Biharilal Yadav (PW-1) was subjected to leading questions, but he maintained the version which he has (Cr.A.No.825/2016) stated in the examination-in-chief. As such, the evidence of Biharilal Yadav (PW-1) is of no use to the prosecution, as he has not supported the FIR and the prosecution case as well. 20.Ramcharan (PW-2) – real brother of Biharilal Yadav (PW-1), has also not supported the case of the prosecution and has stated that he did not see the appellant leaving the house in the late night. He has only stated that Pawan (D-2) was instrumental in getting the house in question on rent to the appellant. As such, the trial Court has recorded finding perverse to the record that Ramcharan (PW-2) has seen the appellant leaving the house in question in the late night. 21. The next witness is Santoshi Bai (PW-3) – wife of Biharilal Yadav (PW-1), who has only stated that on the fateful day, she and her husband heard the noise of knocking of door upon which her husband went out and saw that some unknown person was going out on cycle from the house of the appellant. She has further stated that in absence of appellant, Pawan (D-2) used to come to the house of the appellant. As such, the evidence of this witness is also of no use to the prosecution. 22. From the aforesaid evidence, it could not be established that the appellant was there in the house on the date and time of offence and it is the case of the appellant/accused that he was not in the house on the fateful day and he was brought to the house by Santosh Bareth (DW-1), as he used to work in the PIL factory. As such, the prosecution has failed to establish that the appellant was there in the (Cr.A.No.825/2016) house in question on the date and time of offence, rather it is established that Pawan Dhiwar (D-2) used to come in the house of the appellant in absence of the appellant. Biharilal Yadav (PW-1) & Santoshi Bai (PW-3) have clearly stated that on the fateful day, some unknown person was leaving the house of the appellant in cycle which supports the case of the defence that some other person might have caused the incident and the appellant has been implicated on the basis of no evidence by incorrectly applying Section 106 of the Evidence Act, as the basic ingredient for invoking Section 106 is missing and as the prosecution could not establish that the appellant was present on the spot on the date and time of incident along with his wife i.e. deceased Smt. Khushi Dhiwar (D-1). In that view of the matter, the trial Court is absolutely unjustified in invoking Section 106 of the Evidence Act. 23. The next piece of evidence relied upon by the prosecution is, seizure of the weapon of offence and other articles has been made vide Ex.P- 5 from the spot. Since the weapon of offence was recovered from the spot and the same was not recovered pursuant to the memorandum statement of the appellant herein/accused, in light of the decision of the Supreme Court in Boby (supra), the appellant cannot be connected with the crime in question on the basis of seizure of the weapon of offence from the spot. Even otherwise, no FSL report has been brought on record. 24. In that view of the matter, the prosecution has failed to prove the circumstantial evidence against the appellant as laid down by the (Cr.A.No.825/2016) Supreme Court in Sharad Birdhichand Sarda (supra) beyond reasonable doubt. Therefore, the appellant is entitled for acquittal on the basis of benefit of doubt. 25. Accordingly, we set aside the conviction so recorded and the sentences so awarded by the trial Court to the appellant vide the impugned judgment dated 22-6-2016. The appellant is acquitted of the charge under Section 302 of the IPC (two counts). He is on bail. He need not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC. 26. The appeal stands allowed. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Soma