JUDGMENT :

SANJAY K. AGRAWAL, J.

1. This criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the appellant against impugned judgment dated 18/01/2016 passed by learned Sessions Judge, Baloda Bazar in Sessions Trial No. 38/2015 whereby he has been convicted for offence punishable under Section 302 of IPC and has been sentenced to undergo imprisonment for life with fine of Rs. 100/- and in default of payment of fine, additional S.I. for 6 months.

2. Case of the prosecution, in a nutshell, is that in the intervening night of 18-19/05/2015 at village Bharuadih, appellant herein assaulted his wife Budhwantin by crushing her head with grinding stone due to which she suffered grievous injuries and died and he, thereby, committed the aforesaid offence.

3. Further case of the prosecution is that on 19/05/2015 at about 5:55 AM at Village Bharuadih, Fattelal Manhare (PW-2) lodged a report at Police Station Palaari that wedding ceremony of his younger daughter was organized in his house and guests had come to his house and after having dinner, everyone had gone to sleep. At about midnight, his granddaughter Hemlata (PW-5) woke him up and informed him that in the barn, his daughter-in-law Budhwantin was lying dead and blood was oozing out of her head. At night, his son (appellant herein) and daughter-in-law Budhwantin were sleeping in the barn and his son suspected the character of his wife and on that account, they quarrelled at night and the appellant assaulted Budhwantin with grinding stone on her head and caused her death. On the basis of the said information, merg intimation was registered vide Ex. P/4, inquest was conducted vide Ex. P/2 and the dead body of deceased Budhwantin was subjected to postmortem which was conducted by Dr. Yogendra Verma (PW-7) and as per the postmortem report (Ex. P/13), cause of death is said to be due to concussion injury and hypovolemic shock due to head injury with acute blood loss and nature of death is said to be homicidal. First information report was registered against the appellatn vide Ex. P/5 and after recording his memorandum statement vide Ex. P/9, appellant's blood stained lungi was seized vide Ex. P/10. From the spot, grinding stone was seized vide Ex. P/3. The said seized articles were sent for forensic examination and as per the FSL report (Ex. C/1), blood was found on the lungi seized from the appellant and human blood was found on the grinding stone. After due investigation, the appellant was charge-sheeted for offence punishable under Section 302 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellant abjured his guilt and entered into defence.

4. In order to bring home the offence, prosecution examined as many as 9 witnesses and brought on record 21 documents. Statement of the appellant was recorded under Section 313 of Cr.P.C. wherein he denied guilt, however, he examined none in his defence and neither brought any documents on record.

5. Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased Budhwantin to be homicidal in nature and further finding the appellant to be the author of crime in question, proceeded to convict him for offence punishable under Section 302 of IPC.

6. Mr. Sudheer Kumar Bajpai, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for offence punishable under Section 302 of IPC applying the provision contained under Section 106 of the Evidence Act as it is the case of the prosecution that as per the first information report (Ex. P/5), the incident has been witnessed by Meena Mandel (PW-4), Kumari Hemlata (PW-5) and one Ram Prasad Tandan, who has not been examined before the Court and as such, Section 106 of the Evidence Act would not apply in view of the decision rendered by the Supreme Court in the matter of Murlidhar vs. State of Rajasthan, AIR 2005 SC 2345. Furthermore, the fact t