The prosecution must discharge its primary burden of proving the case beyond reasonable doubt, and the application of Section 106 of the Evidence Act in criminal cases requires careful consideration.

JUDGMENT :

Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant, under Section 374(2) of CrPC, is directed against the judgment of conviction and order of sentence dated 10.6.2016 passed by Additional Sessions Judge, Ramanujganj, District Balrampur-Ramanujganj in Sessions Case No.44/2012, by which the appellant herein has been convicted for the offence punishable under Section 302 of IPC and sentenced to undergo Imprisonment for Life and fine of Rs.1000/- and in default of payment of fine amount, to undergo additional R.I. for 50 days.

2. Case of the prosecution, in short, is that on 12.12.2011 at about 4:00 a.m. in Village Singchoura under Police Station Rajpur, the appellant killed his wife Urmila with tangi (axe) thereby committed the offence of murder punishable under Section 302 of IPC. According to the prosecution, the said act is said to have been committed by the appellant as the deceased was suspecting of his having an illicit relationship with a woman.

3. Further case of the prosecution is that on 12.12.2011 Surendra Vishwakarma (PW-1) lodged FIR (Exhibit P-2) at Police Station Rajpur alleging that on 10.12.2011 her elder sister (deceased Urmila) and her husband (appellant Shivsharan) came to his Village Karra where her sister told him of the appellant having an illicit relationship with a woman and on being asked by him, the appellant refuted the said allegation and then the complainant (PW-1) counseled them and sent back to their village. Subsequently, on the date of incident, i.e., on 12.12.2011, at about 5:00 a.m., Upendra Vishwkarma, his cousin brother, informed him that the appellant has assaulted the deceased Urmila and she is in serious condition and asked him to come quickly. He then immediately rushed to the hospital where the deceased Urmila was admitted and he found grievous injuries on her head and she was already died.

4. On the basis of the said report, Merg was registered vide Exhibit P-1. Spot Map was prepared vide Exhibit P-8. Inquest proceeding was conducted vide Exhibit P-4 and dead-body of deceased Urmila was subjected to post-mortem which was conducted by Dr. Ramprasad Tirkey (PW-8) who proved the post-mortem report (Exhibit P-15) in which the cause of death was opined to be due to Coma and Syncope, which was homicidal in nature. Pursuant to the memorandum statement (Exhibit P-11) of the appellant, a bloodstained iron axe was recovered vide Exhibit P-12 and sent for examination to the Medical Officer, CHC Rajpur who vide Exhibit P-16 opined for the chemical examination of the said bloodstained axe, however, no FSL report has been brought on record for the reasons best known to the prosecution. Statements of the witnesses were recorded under Section 161 of CrPC and the appellant was apprehended vide Exhibit P-18.

5. After completion of the investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC before the concerned jurisdictional Criminal Court from where the case was committed to the Sessions Court, Surguja (Ambikapur) and after committal, the matter was received by the Court of Additional Sessions Judge, Ramanujganj for trial and its disposal in accordance with law, in which the appellant abjured his guilt, took a plea of false implication and entreated for trial.

6. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 9 witnesses and exhibited 21 documents. In defence, neither any witness has been examined nor any document has been exhibited. Statement of the accused/appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.

7. After conclusion of the trial, the Trial Court, by impugned judgment dated 10.6.2016, on appreciation of the oral and documentary evidence available on record, convicted the appellant herein for the offence punishable under