The burden of proof under Section 106 of the Indian Evidence Act and the use of circumstantial evidence to establish guilt in murder cases.

JUDGMENT

Mukta Gupta, J.

1. By way of this appeal, the appellant challenges the judgment of the learned Trial Court dated 14th February, 2019 whereby the appellant was convicted for murder of one Santosh (deceased), who was the wife of the appellant as also the order on sentence dated 16th February, 2019, whereby the appellant was directed to undergo imprisonment for life along with fine of Rs.5,000/- in default whereof, simple imprisonment for one month for offence punishable under Section 302 of Indian Penal Code, 1860 ("IPC").

2. Briefly as per the prosecution case the appellant was unemployed and was a liquor addict, and used to abuse his wife/deceased daily. On the intervening night of 24th and 25th September, 2014, the appellant stuffed victim's mouth with a cloth and strangulated her to death with a chunni and fled from the spot. The dead body was discovered by the eldest daughter of the appellant and deceased baby Rani (PW-1). When PW-1 found her mother not responding, she untied the knot of the chunni of orange colour, tied around the neck of the deceased and also removed the cloth from her mouth. Thereafter, PW-1 went to her nani's house which was five minutes away and told her nani that her mother's body was cold, on which her nani (PW-3) along with her mama Rinku (PW-2) came to the spot. Rinku (PW- 2) made a call to number 100, which was recorded vide DD No.6A. SI Sanjay Kumar (PW-22) reached the spot i.e. Jhuggi, Thokar No.8, Yamuna Khadar, opposite Lalita Park, Laxmi Nagar at about 6.15 AM. Thereafter, IO/Insp. Hari Singh (PW-25) reached the spot and recorded the statement of PW-1 and prepared the rukka on which FIR No.1969/2014 dated 25th September, 2014 under Section 302 IPC at PS Shakarpur was registered (Ex.PW-11/A). In the meantime, the dead body was shifted to LBS Hospital and from there it was shifted to Sabzi Mandi mortuary. After identification of the dead body, it was sent for post-mortem examination. On 30th September, 2014, a secret informer disclosed that the appellant, who had murdered his wife five-six days ago, had come back to his jhuggi i.e. Tokar No.8, Mahender ka Khet to meet his children, pursuant to which the appellant was arrested vide arrest memo (Ex.PW-12/A) and his disclosure statement (Ex.PW-12/C) was recorded. After completion of investigation, charge-sheet was filed and the appellant was charged for murder of his wife/deceased Santosh punishable under Section 302 IPC. To prove its case the prosecution examined 25 witnesses.

3. Dr.Akash Jain prepared the MLC (Ex.PW-6/A) vide which the deceased was declared "brought dead" and therefore, she was shifted to mortuary for post-mortem. Dr.Sandeep Garg (PW-5) conducted the post- mortem examination on the dead body of the deceased on 25th September, 2014 and tendered his report (Ex.PW-5/A) and opined:

"External Examination:

Reddish brown ligature mark present on front and left side of neck with the width wearing between 0.3 cm to 0.5 cm. With base depressed and grooved. Margins showing abrasions and bruises. Ligature mark was 6 cm below the chin and 8 cm above sternal notch, 8 cm from left mastoid process.

Internal Examination

1. Brain matter meninges and cerebral vessels were congested. Underneath ligature mark there was a dark red bruising of soft tissues and muscles. Posterior fragment of left of hyoid bone was fracture with fractured ends reddish and bruised.

2. All other internal organs were congested.

3. Stomach was found to contain semi digested food.

Opinion:

In my opinion the cause of death was asphyxia as a result of ligature strangulation which as sufficient to cause death in ordinary course of nature. The injury number No.1 was ante mortem and fresh prior to death. The time since death was about 12 hours. The body was preserved in cold storage."

4. Learned counsel for the appellant assails the impugned judgment on the ground that the prosecution failed to prove its case beyond reasonable doubt and the learned Trial Court erred in convi